The Digital Journalist
New York Times Contract Tells Another Sad Tale
April 2004

by Greg Smith

Early last month, The New York Times sent a letter and a new work-for-hire contract to photographers listed in its database of freelancers. Although many other news organizations have similar or more restrictive photography contracts and The Times issued in 2001 an appalling writers contract following its loss of the landmark Tasini copyright case in the Supreme Court, freelance photographers at the paper had been spared such documents.

At the end of March, the photojournalism email lists were still abuzz with discussion about the contract, Times freelancers were meeting in groups across the country and there were scattered reports that those refusing to sign were being told they could no longer make pictures for what is probably the best-known newspaper in America, if not the world. PDN was quick to report on the contract in its online edition. The American Society of Media Photographers published on its website the contract, an analysis of it and The Times' response. In his column on the Sports Shooter web site, Rick Rickman was calling the contract a turning point in photojournalism. The New York Post's Keith Kelly led his media column with a report on photographers protesting the contract. ASMP executive director Eugene Mopsik collected dozens of names of photographers affected and offered to present their concerns to Times management.

Leaders of the National Press Photographers Association, which has nearly 10,000 members, were trying to craft their own statement concerning the contract. But issuing such a statement required that the group change one of its bylaws, which prohibits NPPA's involvement in labor issues - including freelance contracts. NPPA officers said they were trying to quickly schedule a board of directors' vote to change that bylaw.

One group of Times shooters drafted a letter of protest, dated March 31, and distributed it on several email lists to fellow photojournalists. The email message also calls for other photographers to send letters of support. The words "WE CANNOT LET THIS CONTINUE!" shouted across the bottom of the message. Others were musing about demonstrations in front of The Times offices on West 43rd Street.

"This contract MAY BE OK IF YOU were an employee," Seth Resnick, Editorial Photographers founder and former president, typed, with his caps lock light shining, to the EP email list . "In my humble opinion, for the fee that the NYT is has paid in the past, it would be pure foolishness to sign this."

LOW FEES DON'T ADD UP

Freelancers reported standard fees for most sections of the newspaper amounted to $150 for assignment days in the New York area, $200 farther a field and $250 for international work. Those rates haven't risen significantly in a generation - even as photographers' costs have skyrocketed - along with The Times ad rates and revenues. Expenses, particularly film and mileage, have been scrutinized closely for years. Two years ago, The Times stopped paying a $100 fee per assignment for photographers who scanned their film and transmitted digital files. More than a few experienced photographers stopped working for The Times at that point, arguing that although Times officials were right about most photographers no longer shooting film on deadline, digital had even higher costs. By effectively cutting the day rate by a third, The Times was reaping the advantages of digital capture while shifting the costs to its already underpaid independent contractors.

Others stayed. They talked of enjoying assignments that played to their strengths, working with top writers and editors on interesting stories, gaining access to news situations through their affiliation with The Times, and the attention that a New York Times credit line sometimes brings. They shot film and mailed it in, or they had it scanned in batches by a lab and sent in a CD-ROM by FedEx - or they sucked up the costs of digital capture and transmission, perhaps trying to make up with charges to better-paying clients. A few reported some success at getting The Times to pay digital fees, if they were presented in just the right fashion.

As March ended, many of those photographers spoke of "sadness," "betrayal" and greed that would backfire on The Times - and consequently, its readers and viewers. And some figured it might be time to move on to other types of photography - besides mainstream journalism - that were already paying a large share of their bills. Many wouldn't speak on the record about the contract, saying they hoped to find a way to keep working for The Times and they feared reprisals.

"I have risked my life repeatedly while on assignment, and now they send me this contract," said one frustrated freelancer who didn't want his name used. " I've done a lot for them. It's a triumph of corporate journalism against the little guy who cares."

CONTRACT ASKS FOR TOO MUCH

The new contract, which company officials have given no signs of willingness to negotiate, demands:

o Assignments for The Times will be works for hire. But The Times will grant back rights to the pictures and hold them jointly with the photographer. The company will also market those photographs as stock, paying the photographer 50 percent of collected revenues - except for revenues from advertising sales, for which The Times will cap payments, according to an internal schedule; and for syndication under The Times and International Herald-Tribune brands, for which there will be no additional compensation.

- Photographers submit all images recorded on an assignment for The Times to edit and embargo all of them until 24 hours after first publication of an image from the assignment - and in the case of the published images, for an additional 10 days. The contract also absolves The Times from any responsibility for losing or damaging submitted image files or film.

- Indemnification by the independent photographer of the multinational New York Times Company against any allegations that the photographer's pictures violate others' copyrights, privacy or libel law.

- Photographers avoid all conflicts of interest spelled out in the ponderous Times' Ethical Journalism policies, which are designed for employees, not independent contractors with other clients.

For photographers who justified their low pay with the prestige of a Times credit line, there was another poison pill. Paragraphs 4 and 7(b) of the contract proscribe photographers from using the name of The Times to identify the origin of their pictures, or to advertise and promote their services or experience.

"I find that particularly repugnant coming from a proponent of free expression," Steve Kagan, a longtime Chicago freelancer for The Times, said, referring to the paper's strong support of the First Amendment.

Kagan said that although he protested the 2002 elimination of scan and transmit fees, he stuck with the paper. And he's had long conversations with Times editors, who say draconian measures won't be enforced. But he notes the contract will likely outlast well-meaning staffers.

"They can talk about what it means," he said, " but when you put it down on paper, this is what you sign."

Robin Nelson, a longtime freelancer from Atlanta, added, "Some editors say things won't change. Maybe they haven't looked at the contract. You're kicking the guys who make you look good."

There has been no official announcement of an increase in rates paid, although Times company officials say a raise has been discussed but not scheduled. A key editor with The Times told me last summer that, in fairness, The Times day rate should increase two- or three-fold, but "no one gets a 200 percent raise." Rumors were circulating late last month that the assignment rates would be increased by $50.

"If I work every day (of the year, except vacations, holidays and weekends), I max out at $48,000," said the photographer who requested anonymity. He added that his gross income last year - based on far fewer paid assignment days than the 240 "max" he cited, from a combination of The Times and other, better-paying clients and resales (which the new contract's embargoes and rights grabs would undermine) - was roughly that amount. Besides living on that income, the photographer has to pay for all his equipment, repairs, insurance, telephones and other costs of doing business.

"I live like a hippie," he admitted. "But I enjoy that kind of life."

Sitting at my homemade computer desk in a tie-dyed T-shirt, listening to an old Grateful Dead bootleg, I can't see much wrong with living like a hippie. But I wonder whether that - or a lower living standard - should be a requirement for a professional journalist. Presumably, so would officials at the Newspaper Guild of New York, the union that represents staff journalists at The Times. However, four telephone calls to that organization's offices yielded no comment on the subject.

STAFFERS AT RISK, TOO

Times staffer photographers earn a salary of $70,000 or more each year. Add in benefits, camera equipment, computer equipment, office space in midtown Manhattan, a vehicle, parking in prime real estate, and the total annual cost for a staffer reaches $120,000 to $145,000, or $500 to $600 per working day. The company incurs those costs whether the photographer is making pictures, preparing contest entries or attending newsroom meetings. With freelancers costing The Times a small fraction of that and cost-cutting ruling the day, "in the long run, the handwriting is on the wall," the ASMP's Mopsik said about the future of staff photographers.

Michaela Williams, a Times employee named in the contract cover letter as a source to answer questions about the contract, referred my queries to Toby Usnik, public relations director for the company, who also responded to ASMP's analysis. He wasn't very enlightening.

Usnik refused to reveal how many photographers had signed the document but stated in a written response: "there has been a steady inflow of signed contracts. Certainly we value our relationship with freelance photographers, and we are pleased to formalize those relationships with a contract that we believe is concise and clear."

But many photographers questioned that clarity and, in lieu of The Times' actions, how much Usnik's company values their contributions.

"When you do a careful analysis of this contract, it's full of inconsistencies," Mopsik said, citing the conflict of interest clauses, embargo language that could dramatically reduce the value of breaking news pictures, and the fact The Times could resell or reuse - without contacting the photographer first - images for non-news publication that might incur liability to photographers who have indemnified the company. "The other issue is: Why do they need to be the joint copyright holder? That is, what reason beyond raising their profitability on the backs of their photographers. It puts the photographer in competition with them for resales.

"It's just a bad contract."

RELATIONSHIPS COUNT

Despite the questionable balance of the business equations, it was the "relationship" that really seemed to concern most photographers. Many talked of how they respected and trusted their editors, whom they can't believe had any input into the contract, nor fully understand what they are proffering for photographers' signatures.

"They pride themselves on having good photography," said Robin Nelson. "Editors want the best they can get. But management said this is the way it's going to be.

" The Times has been championing the little guy for years," he continued. "We're a bunch of little guys. And here's The Times being hypocritical. I think it's almost a respect thing."

But wait. This is business, isn't it? Words such as respect and hypocritical don't have a role - or do they? They come up repeatedly in reference to this and other news contracts. So does talk of fairness, motivation, creativity and experience.

There is a widespread disconnect among many journalists - staff and freelance, writers, photographers and editors - on both the cost of doing business and the value of resale rights to editorial photography. The combination of the new contract and outdated fees paid by The Times puts photographers in a position of subsidizing the multinational media conglomerate with every assignment. Many staffers and inexperienced freelancers think $200 sounds like a lot of money for a day's work. But my experience and survey data suggest that's less than the everyday (whether working or seeking work) cost of operations for most photographers. If photographers' rights to profit from additional sales of their pictures are curtailed and their liability increased - without an exponential increase in fees - those who continue to work for such "deals" will need someone to subsidize them.

Usnik, The Times' chief flack, says, " we believe this contract is fair - and in many cases more favorable to photographers than most contracts out there now."

And that may be the biggest rub about all this. The Times isn't alone in issuing such contracts. In fact, its sister paper, The Boston Globe, has, at least for now, worn down the legal opposition to its contract, which like the writers agreement at The Times, demands retroactive rights to previous assignments before a contributor can continue working for the paper. Knight-Ridder newspapers, Belo papers, McClatchy papers and the Washington Post are among those with contracts that take broad rights and offer freelance compensation rates mired in 1970s dollars. The wire services, particularly the nominally cooperative Associated Press (which fanned a similar firestorm of protests in 1999 when it issued a work-for-hire contract), are as bad or worse concerning deals for their stringers. And it's appalling that spokespeople for the news media - our societal arbiters of truth and fairness - can call such arrangements "fair," while their news pages report on the plight of coffee growers and their editorial pages decry Walmart's pressuring of its suppliers.

WHAT REALLY MATTERS

The bottom lines for journalists (as well as the people who own and operate journalistic organizations) should be their readers and viewers. But are they the key concern for photographers seeking credit lines to advance their careers, access to news events or a diversion from the mundane assignments that pay their bills? If news assignments won't pay the price or offer the rights dedicated, experienced professionals require to make a living, then we'll have someone else producing our visual reports in a visual age. Will visual news reporting become the province of hobbyists, thrill seekers, status hounds and people who don't know how to watch out for their own interests - let alone those of their readers and viewers?

While most folks said the sky hasn't fallen on visual news quality, clouds are gathering. Many complain about the declining lack of depth and visual insight in wire packages. Reports of irresponsible behavior - affecting news situations, as well as manipulating news pictures digitally - seem to be rising. Coupled with these reports, are tales on the email lists of underhanded dealings with sympathetic picture editors, who encourage photographers to submit extra days or pad expense accounts when the editors believe a photographer deserves more compensation. Internal audits sometimes turn these things up, trust erodes and the rules tighten some more. Moreover, all this happens amid public hand wringing over the fabrications of Jayson Blair at The Times and Jack Kelley at USA Today.

Cheapness and the building of marketable journalism stars lead to such ills, just as they lead to underpaid photographers cutting corners. One Times freelancer, who explained that he has survived by watching every penny while on assignment and reselling his work, claims he covered the Afghan war with a relatively inexpensive, point-and-shoot digital camera. He didn't say whether the long shutter lag or short image buffer prompted him to miss key shots - or dangers around him. Apparently, he didn't bump it hard against a cave wall before he got the pictures he needed.

Ken Richardson wrote to the EP list, "ASMP's criticism of the contract states the news that the public receives will suffer. They are correct. It has suffered, because good enough now has become what the wires can provide."

ASMP's Mopsik said The Times' contract, and those like it, "fracture that relationship" of "creative partnership" that yields the best visual reports. The impact of this, he suggested, is gradual and insidious. And it builds on itself. A dedicated journalist, he said, loses an edge over time if consistently underpaid, and as the quality and reputation of a newspaper declines from such cheapness, there's less motivation for the photographer who cares to push his or her limits and take risks. And The Times, because it's such a leader in journalism, sets a bad precedent with its rights-grabbing contract.

"Over time, this diminishes the quality of the newspaper," he said. "And the quality of reporting in The New York Times does have an impact on the political climate."

JOURNALISM AT RISK

I contend that in our visual age, good photojournalism is necessary for a voting public to understand its world. The impact of key pictures - such as an American's body being dragged through the streets of Mogadishu or Saddam Hussein undergoing a lice inspection - can change public policy and influence elections. On the frontlines of photojournalism, we need the best folks possible, not the cheapest. What is happening to our profession is much bigger than what models of cars and cameras we can afford. Placating media corporation stockholders while undercutting the quality of reporting - and the lives of those who report - is an abrogation of the responsibilities that go with being the Fourth Estate, and I would hope, bad business in the long run.

If enough experienced photographers refuse to sign the contract, picture editors might actually complain loudly enough to be heard in the corporate offices. And if those who refuse to sign can get their message - that good, honest journalism requires fair, honest compensation - to the general public, there's a chance that a better deal can be struck. Perhaps enough folks will join protests or write to The Times new "public" editor Daniel Okrent about the unreasonable contract, and the company will change its tack. Perhaps.

There seems little doubt that many starry-eyed photographers who want to work for The Times will sign the contract, and many photographers with experience and a sense of self-respect will refuse. There's a good chance the contract will survive, perhaps with a few minor changes and a small increase in fees. Steve Kagan said that unless the contract was changed significantly, he expected to end his long relationship with a newspaper he loves.

"The main feeling I have about this is just really sad," Kagan explained. "I can't continue doing something I love."

I'm sad, too.

© Greg Smith

Greg Smith is photographer and writer who lives on a tidal river near Bluffton, S.C. He keeps his spirits up by focusing on several documentary projects, among them a nearby pair of bald eagles, other wildlife and his rapidly changing community. An exhibit of his local photography hangs in the Bluffton Branch of the Beaufort County Library through May, accompanied by a catalog on the web. Greg is a former director of ASMP/South Carolina, a former freelancer of both pictures and words for The New York Times, and a current member of the National Press Photographers Association's Business Practices Committee. His first effort for The Digital Journalist was an open letter, three years ago, to Arthur Ochs Sulzberger Jr., publisher of The New York Times, and in December 2002 he opined about love of the profession.