Thursday, December 3, 2009

NEW RDA CONTRACT INSULTS THE VALUE OF PHOTOGRAPHERS!

I just received the following from one of the stock/rep agencies I am associated with, http://www.onasia.com/. They, very wisely, have decided not to work with RDA until a version of the contract more photographer friendly is offered.

Photographers are being pushed around more and more and the value of our work is being decided by other than us. I think it is time to be very careful with how we allow agencies, publishers, etc. to determine our value.

Notes in red are the agencies thoughts. The comments made by OnAsia are only opinions and purely for informational purposes – it is up to you to make your own decisions as to what you feel is acceptable in a contract.

DATE:

NAME OF PHOTOGRAPHER:

ADDRESS:

This contract, when executed by both parties, shall constitute an agreement between Reader’s Digest Asia Pte. Ltd. (“RDA”) and yourself with respect to certain photographs (the “Photographs”) to be created as follows:

1. You agree to deliver the Photograph(s) listed in Schedule A in compliance with the delivery date(s) set out in said Schedule.

2. You hereby grant, license, and assign to RDA, its subsidiaries, affiliates, parent company and licensees the following rights in the Photographs:

a) Exclusive worldwide rights to reproduce and publish the Photographs in any magazine, periodical or other publication as well as the right to reproduce and publish the Photographs in any Read­er’s Digest anthologies, compilations and promotional materials. AT EDITORIAL RATES THE NORM FOR ASSIGNMENTS HAS BEEN AND SHOULD CONTINUE TO BE FOR ONE TIME USE BY A SINGLE PUBLICATION UNLESS A REASONABLE FURTHER FEE HAS BEEN AGREED FOR MULTIPLE USES.

b) Exclusive rights to distribute the Photographs through the Internet, mobile phone and other commercial on-line services or through any other method or media, including without limitation, motion pictures, television programs, video programs and other audiovisual productions. IT IS OUR OPINION THAT THIS MEANS THAT NEITHER YOU (NOR YOUR AGENT) CAN RELICENSE ANY OF THE IMAGES YOU SHOOT ON THESE ASSIGNMENTS FOR TWO YEARS (SEE 4 BELOW) – EFFECTIVELY THE MAIN ‘LIFE’ OF THESE IMAGES. SO YOU WILL LOSE PRETTY MUCH ALL RESALE VALUE – ONE OF THE MAIN REASONS YOU CAN AFFORD TO TAKE ASSIGNMENTS AT LOW EDITORIAL RATES. THIS CLAUSE IS AMBIGUOUS AND IT IS OUR READING THAT YOU WOULD BE GIVING RD THE RIGHT TO MARKET AND SELL YOUR IMAGES TO ANYONE EVEN PUBLICATIONS/CLIENTS OUTSIDE OF RD FOR ANY USE INCLUDING ADVERTISING WITH NO FURTHER REMUNERATION TO YOU.

c) The right to archive the Photographs in any manner, method or media, now or hereafter known.

3. You agree that RDA may modify the size or other elements of the Photographs, which it shall do with care.

4. RDA shall have the exclusive right set out in section 2 herien, for a period of 24 months which shall commence from the date of publication of the photos and thereafter the rights set out in secton 2 shall be read as non -exclusive for an indefinite period. EVEN AFTER THE TWO YEARS RD CAN CONTINUE TO LICENSE (SELL) YOUR IMAGES IN PERPETUITY WITH NO REMUNERATION TO YOU.

5. You warrant that you have the full power to grant such rights set out in Section 2 herein, that the Photographs are original, and do not infringe any copyright or other rights of any third party, or contain any matter that is libelous or otherwise in contravention of the law. BE VERY CAREFUL WHEN SIGNING A CLAUSE LIKE THIS, IT IS OUR OPINION THAT IF YOU ARE SHOOTING AN ASSIGNMENT FOR A CLIENT, THEN IT IS UP TO THE PUBLISHER TO SATISFY THEMSELVES THAT THE IMAGES DO NOT INFRINGE ON ANY RIGHTS. NOT MANY PHOTOGRAPHERS CAN AFFORD TO DEFEND THEMSELVES AND THIS ONE SIDED CLAUSE MIGHT OPEN THE DOOR TO AN ACTION AGAINST THE PHOTOGRAPHER SHOULD THE MAGAZINE END UP USING AN IMAGE IN A LIBELOUS MANNER ESPECIALLY AS THEY CAN, WE BELIEVE, SELL THE IMAGES TO OTHER CLIENTS AND LOSE ANY CONTROL OVER HOW THE IMAGES MAY BE USED.

6. In consideration of the rights granted hereunder, upon acceptance of the Photographs at our sole discretion, RDA will pay you the sum set out in Schedule A. SHOULD RD OFFER YOU CORPORATE STYLE RATES FOR THE ADDITIONAL RIGHTS THEY ARE DEMANDING ABOVE (RIGHTS THAT WE BELIEVE ARE WAY IN EXCESS OF MOST CORPORATE ASSIGNMENTS WHICH NORMALLY DO NOT CARRY RESALE RIGHTS) THEN FOR SOME PHOTOGRAPHERS THIS MAY BE WORTH SIGNING. BUT IT IS OUR UNDERSTANDING THAT ANY RATE INCREASE FOR THEIR ASSIGNMENTS WILL BE MINUMAL, CERTAINLY WILL NOT APPROACH ANYTHING LIKE THE VALUE OF WHAT THEY ARE DEMANDING IN THIS AGREEMENT.

7. If the Photographs are not accepted because the article that they illustrate has been cancelled, RDA will pay you a kill fee representing up to fifty percent (50%) of the due amount for the Photographs as set out in Schedule A. THIS CLAUSE ALONE MAKES THIS CONTRACT COMPLETELY UNACCEPTABLE IN OUR OPINION – THEY CAN SIMPLY DECIDE NOT TO RUN A STORY AND ONLY PAY YOU 50% - THEY DO NOT EVEN MAKE IT CLEAR WHETHER THIS INCLUDES ONLY PAYING 50% OF THE EXPENSES! ASK THEM WHETHER WHEN THE READERS DIGEST CORPORATE TYPES GO SHOPPING AT TESCOS AND BUY A CASE OF RED WINE, THEY SAY THEY WILL ONLY PAY HALF IF THEY SUDDENLY DECIDE THEY PREFER WHITE.

8. If the Photographs are not accepted because they do not meet professional standards or if they do not meet the expectations or descriptions of RDAU specified in Schedule A, you will not receive any form of compensation or kill fee. THIS IS NOT A CLAUSE WE LIKE TO SEE IN ANY CONTRACT AS IT IS AMBIGUOUS, ONE PERSON’S IDEA OF WHAT IS USABLE IS ANOTHER’S FULL PAGE PICTURE. IF A PHOTOGRAPHER REALLY MESSES UP A SHOOT BOTH SIDES WILL KNOW IT AND THE PHOTOGRAPHER WILL PROBABLY CONCEDE THIS AND NOT CHARGE OR RESHOOT FOR NO ADDITIONAL FEE…BUT NEVER GOOD TO HAVE THIS AS PART OF A CONTRACT. BUT PROBABLY NOT A DEAL BREAKER.

9 RDA will reimburse reasonable expenses upon presentation of appropriate receipts or documentation. Any expense exceeding $100 must be approved in writing in advance by RDA.

10. this agreement may not be assigned by either party without prior written consent of the other party, except that RDA may assign the agreement to any successor publisher of Reader’s Digest magazine.

11. This Agreement shall be governed and construed in accordance with the laws of Singapore.

READ, ACCEPTED AND AGREED TO:

READER’S DIGEST ASIA PTE. LTD.

By:_________________________________________

Date:________________________________________

PHOTOGRAPHER

By:_________________________________________

Date:________________________________________

SCHEDULE A

DESCRIPTION OF THE PHOTOGRAPHS DELIVERY DATE(S) FEES