Heinrich Bauer, the German publishing group who now owns a large chunk of the consumer magazine publishing and radio empire formerly known as EMAP (£1.1Bn sale in November 2007), have a new contract which they are seeking to impose on freelance photographers. It is, even by the increasingly feudal standards of the industry, a landmark in predatory unreasonableness that fails to recognise freelances are small businesses, not serfs. Quite honestly, only an idiot would sign it.
Here are the outstandingly awful clauses:
2. ...you shall provide us with all materials on which the Commissioned Works are embodied (including without limitation negatives and data files including any metadata instruction).
So no similars. You must hand over the whole shoot.
4. By signing and returning t his agreement to us, you hereby (i) irrevocably assign to us (by way of present assignment of all present and future rights) and with full title guarantee all legal and beneficial right, title and interest in the intellectual property rights in the commissioned Works whether vested, contingent or future together with all accrued rights of action in respect of any infringement of the intellectual property rights in the Commissioned Works (the "Assignment"); and (ii) irrevocably and unconditionally waive any and all moral rights to which you may be entitled under any legislation now existing or in the future enacted in any part of the world. You agree to provide (at your own cost) all information and assistance reasonably required by us for and in connection with the Assignment and to do all such things and execute all such documents as we may reasonably require in that regard.
Let's be clear : this is the Mother of all Copyright Grabs, even precluding any moral rights that might be provided by future legislation anywhere in the world. And you get to pay for anything necessary to ensure your work will belong to Bauer.
6. We shall have the right to reformat, combine, crop, distort, retouch, amend or otherwise edit any Commissioned Work provided hat a Commissioned Work may not be reformatted, combined, cropped, distorted, retouched, amended or otherwise edited in a malicious manner.
So Bauer can mutilate your work, so long as it's not done maliciously. But since you already gave up your moral rights, at least they won't ruin your reputation by running your byline alongside.
8.2 without prejudice to the generality of paragraph 8.1, either the Commissioned Works will be in their entirety your own original work or you have obtained all rights (including without limitation all intellectual property rights), title and interest in the Commissioned Works (or any part thereof) from any third party and you have all necessary power, authority and title to grant the Assignment in the Commissioned Works [provided that we acknowledge that the Commissioned Works may contain third party content to the extent permitted under section 30 of the Copyright Designs and Patents Act 1988];
A truly megalomanic clause that requires you to also assign copyright of any third party whose work is incorporated in your own, eg of included work in a derivative work you have made. In other words, Bauer insists you grab the copyright of any third party so they can grab the whole lot from you. Screw up on this and you'll be rogered by both sides, by Bauer for breach of contract and by the third party for infringement. Cute.
8.3 none of the Commissioned Works has been used by you or by any third party and you will not use any of the commissioned Works and you have not and will not authorise the use of any of the Commissioned Works by any third party;
You can't use your own work before or after you make it, and you can't let anyone else use it either. Want to use it in a portfolio or on your website? You can't, it's Bauer's work, not yours.
8.4 there will be no restrictions on how or where the Commissioned Works are published or exploited by us or any of our sublicensees or assigns;
Just in case it wasn't clear : for the umpteenth time, it's Bauer's work, not yours.
8.5 nothing in any of the Commissioned Works will be obscene, indecent, racist, defamatory or otherwise actionable under any law; and
Fair enough but t's unlikely anything you do will be as obscene as this contract
8.6 facts stated in the Commissioned Works to be true are true.
At last, an almost reasonable stipulation, only unreasonable because it gives no latitude for errors made in good faith..
9. You shall indemnify us for any breach of paragraph 8. You agree to provide us, on request, with all assistance, notes and
materials necessary to substantiate claims made in any of the Commissioned Works. You agree to co -operate fully in responding
to and defending complaints and claims relating to any of the Commissioned Works made by a third party.
Give us the paperwork too...
10. You promise to keep all matters concerning us (and our associated companies), our publications and your work for us confidential.
After all, Bauer wouldn't want it known what they're up to.
11. The Contracts (Rights of Third Parties) Act 1999 shall not apply to this agreement.
This Act provides for a third party to a contract - eg someone who is not Bauer or the commissioned contributor - to benefit from it. Bauer ain't having no third-party claims.
12. This agreement shall be binding on and enure for the benefit of each party's successor in title.
Even when you're dead all this stuff applies.
13. You shall not be entitled to assign, or otherwise dispose of all or any part of your rights, benefits, obligations, ti tle or interest under
this agreement. We are entitled to assign, novate, sub -license and otherwise dispose of this agreement and/or any of our rights,
benefits, obligations, title or interest under this agreement.
No wriggle room, Bauer can do whatever they like with the work you made, and you can do nothing. Got that?
This is a contemptible document that undercuts all expectations of fairness. Copyright law enables freelance creators to retain their rights in what they create for a very good reason : as independent small businesses our work is the only asset we will ever possess. H. Bauer clearly has other ideas, appropriating copyright and imposing liabilities that go far beyond what an employer would be able to demand of an an employee, but with none of an employer's statutory duties or responsibilities. We hope that nobody signs it. Whatever short-term advantage you may imagine signing may gain over colleagues and competitors, you will be fouling your own nest and contributing to an increasingly toxic environment for photographers. The only way to discourage these things is to say 'no'.
The NUJ has also flagged up the Bauer contract as a landmark in corporate greed, at http://www.londonfreelance.org/fl/0808baue.html
| Attachment | Size |
|---|---|
| Bauer Publishing Commission Agreement.pdf | 72.44 KB |
| Bauer Commission Agreement (Limited Transfer).pdf | 24.43 KB |
Hi
just to let everybody know, Bauer has done this last year in Germany.
Even the Court forbid the use of the contract.
Then Bauer formed new companies, which again put out the contract.
As time goes by more and more starving freelancers signed it.
This company is not worth working for, Mr. Bauer and his daughter even ask the people to turn papers when they
xerox to save the money...
What can anyone say. To sign a contract like this, well you simply can't do it. To lose control of your own work, in a market which chooses to pay less today than it did in 1994 (taking into account inflation etc), well it is commercial suicide.
For an update regarding Bauer's roll out of its contract, see the BJP 13th Apil 2010 - http://www.bjp-online.com/public/showPage.html?page=874190
If anyone knows of organised resistance to this, please get in touch.
©A admin
Bauer's bastard contract is now even worse, according to the BJP.
"The new contract includes a clause that requires all freelancers and photographers to transfer all of their rights to Bauer Media.
‘By signing and returning this agreement to us, you irrevocably and unconditionally assign to us in perpetuity by way of present assignment of present and future copyright, the entire copyrights and all other rights and title of any kind in the Commissioned Works throughout the world (including any amendments and extensions to that copyright). You hereby irrevocably waive any and all moral rights you have in the Commissioned Works.’"
http://www.bjp-online.com/public/showPage.html?page=873416
So basically, Bauer now only want clueless contributors who really don't care about their own work.
©A admin
Confirmation from John Toner of the NUJ:
In further news, CopyrightAction has been told by a Bauer source that
So hang on in there and don't sign!
©A admin
Photographers who have declined to sign the Bauer contract and have argued against it's ludicrous terms have now received the following old flannel:
Among the self-serving distortions contained in this letter, the Bauer claim of having 'sought the advice of the NUJ' stands out as particularly disingenuous. The NUJ's 'advice' was quoted in the Press Gazette on July 18th : "NUJ freelance organiser, John Toner, said he had written to Bauer raising concerns about the contract and had offered to meet the publisher to discuss rewording it. 'This is one of the more outrageous contracts I have seen from a publisher in this country,' he said. 'I'd be surprised if anyone's signed it so far'.
'To grab the freelance's copyright for a one-off fee is bad enough, but to expect the freelance to then indemnify the publisher simply adds potentially ruinous injury to injury.'"
Bauer subsequently made minor amendments to the absurd indemnity clauses but declined further discussion with the NUJ on the central issue of unrestriicted rights for single-use fees. Not unsurprisingly, because it would undermine the false impression they wish to create, their letter fails to mention this significant fact.
©A admin
It appears Bauer have a second contract, entitled a 'Commission Agreement (Limited Transfer)', which may be offered if you object loudly enough to the Copyright Assignment (Faustian Pact) version described above.
This second contract is now attached to the original posting as a downloadable document, for comparison.
It is hardly an example of enlightened best practice but it is a modest improvement on the first. The significant differences are below:
So no longer full copyright, 'just' a perpetual license instead of what it should be, First British Rights. Not really good enough unless the fee is proportionate.
This is much better than the first, which ignores any impact on reputation.
Compulsory syndication would cause problems for photographers who already use agents on an exclusive basis, but it looks as if it is possible for photographers to withold permission. And 5 or 10% for use by Bauer edition licensees is appalling.
Fair enough! Which just goes to point out how unfair the Faustian Pact version is.
A 3 month embargo on secondary sales. Worse than the traditional 1 month though.
This contrasts with all liability being dumped on the photographer in the first contract.
There is no moral rights waiver in this version.
Please llet us know if you manage to amend par.4 to First British Rights or opt out of syndication.
©A admin
The NUJ's John Toner has formulated a draft reply for use by recipients of the Baur contract, copied below with permission. Please feel free to use or adapt.
Thank you for sending me a copy of the Bauer Agreement. I would be reluctant to agree to this for the following reasons:
Clause 4: (i) This requires me to assign the economic rights in all future commissioned works, and would prevent me using my work again. (ii) This requires me to waive my moral rights, even if future legislation strengthens moral rights. This goes beyond what is required in the normal editing process.
Clause 6: In line with 4 (ii), this allows you to alter my work in any way you choose, provided you do not do so in a 'malicious manner'. The difficulty would be in proving malice, which would allow for a distortion of my work through negligence. This could be damaging to my reputation.
Clause 8.3: This stipulates that the commissioned works must not have been used before, and that I will not use them nor allow anyone other than Bauer to use them. As with Clause 4, this prevents me from re-using my own work and from earning further income from the work I have created.
Clause 8.5: It is difficult for me to warrant this, as what is obscene or indecent, for instance, is decided by a particular court sitting on a particular day.
Clause 8.6: Again, it is difficult to warrant this. I would be prepared to give an undertaking that I have taken all reasonable care to ensure the facts are true.
Clause 9: This transfers the publisher's full liability to me. In other words, if something in the work were proved to be obscene or libellous I would bear the full responsibility. This could run to many thousands of pounds and could be ruinous to me.
I would be more than happy to discuss this further, so that we can reach an agreement that meets your requirements without stripping me of my rights.
©A admin
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