US Marie Claire contract- please advise

James,

What in this sounds unfair ?

It takes not to work for them anymore….

James, phone me….Do not, DO NOT, let MC syndicate themselves….....talk to Jack too….I can put you in touch with with one of the ‘foreign’ desks, who are quite open about it – you are a million times better off doing it yourself…......

Eyal- I don’t want to get used to the taste of shit sandwich, otherwise that is all that is left on the menu.

John- the outcome of this negotiation will likely decide that

Steve- thanks, I’ve spoken with our friend who has experience with (US) MC. Hopefully others who have declined this woeful contract will contribute something here. Cheers

Have you ever thought you have just taken some beautiful pictures and opened up the back of the camera and discovered you forgot to put film in the back? I have. I call this the someone has been fucking my girlfriend feeling! :) It is a feeling of emptiness, anxiety, loss, embarrassment and being cheated. As oblique the connection may seem this is pretty much what I feel everytime I read a contract like this. It is a bit like being fucked up the arse (without a condom) by two headed aliens from a far away galaxy in a dark alleyway at 3am in the morning. Put simply, the contents of the contract are so simply fantastic that if you told anyone about them they would never believe you. Just to hit the rewind button…. another dynamic to consider is that not that long ago many magazines (a few still do) would give you a one week assignment for a feature now they offer one or two days to do a six-eight page feature so in balance it is even more important for a photographer to fight for their, ‘rights’ ALL pun intended.
Some contracts can be managed. Here is the way I approach most of them it is not a perfect strategy but you may be able to glean an idea here and there.
1. No matter what, get the client to send the contract to you straight away before you accept the assignment this is especially important for clients you are working with for the first time.
2. Always consider no matter how draconian the contract is that you first receive is that it is usually just the starting point of negotiation.
3. Have your OWN contract. I have a template that can be emailed to people and you can ADD and SUBTRACT appropriate and specific clauses as you deem fit.
4. I always feel you have the right to negotiate the contract, this is not a privilege to be able to do this, it is a ‘given’ in nearly all areas of business.
5. In my opinion never allow or agree to a magazine syndicating your feature within their group of magazines. They nearly always sell the features at appalling rates in-house to each other at prices that are far removed from general market place value.
6. It is worth considering that while you are still in procession of digital files and/or film you are in a strong position of negotiation if things should become difficult .

Jack

James,

I was asking a simple question (there was no hidden meaning) I want to understand:

What in this sounds unfair ?

Hi Eyal,

Normally a freelance photographer when shooting a assignment for a magazine will give first publishing ‘rights’ to the magazine that has assigned them. After the magazine has published the images ‘rights’ for the images reverts to the photographer who then may sell the feature onto other magazines allowing the photographer to make further possible income. How much the feature sells on is very abstract it depends on the specific feature but atleast the photograher has a chance of making some additional income. This has been traditionally the way that independent photojournalists have been able to make a little more income. What has happened now is that magazines are often giving shorter duration assignments and also often trying to keep the ‘rights’ for re-sales. Hope this helps. j

jack,
look on the bright side.i am sure marie claire would pay good money to see the wedding photographs.anally obssessed two headed aliens,that has to be a ‘brides around the world ’ feature.wonder who retains the off-planet rights?

That’s my Jack !! :-)

Michael you know the formula! Want to go 50% on sales on the ‘two headed anal alien brides around the world story’!??? we are going to make allot of money here!!

j

Steve, I have been a bad boy. Nothing beats B-52 bomber found on the moon though!
j

i hope ‘she’ is good looking,both of her!

Jack,

Thanks for the explanation.

So the problem here that MC keeps the rights or want to act as an agent with their network?

I understood that they are willing to split 50/50 on every sale they make – Is this correct ?

If so, what is the problem? Is it like someone mention above that they may sell to their network at low rate ?

If so, than the possible solution can be some agreed minimum pay for the re-sell by MC.

Have I missed anything ?

Best,
Eyal (still learning)

Eyal,
Thanks for the explanation.

So the problem here that MC keeps the rights or want to act as an agent with their network?

Ans. Yes

I understood that they are willing to split 50/50 on every sale they make – Is this correct ?

If so, what is the problem? Is it like someone mention above that they may sell to their network at low rate ?

Ans. Yes they sell at very low rates in house to sister publications it stands to reason that they would of course.

If so, than the possible solution can be some agreed minimum pay for the re-sell by MC.

Ans. Good idea but in practice the photographer is never allowed to get involved once it is syndicated within the group.

Have I missed anything ?

Ans. Don’t think so.

Cheers,

Jack

Best, Eyal (still learning)

hi jack, since i am also in the process of “still learning”, your explanation is very much welcome. so that’s how things may go with sister publications. steve, about that pm—i guess jack just covered it. many thanks to eyal too for asking the right questions.
so much to learn!!!!

kat :)

Eyal, you question is fair- please excuse me for misreading it.

For MClaire to condescend to cutting me in on future sales of the images is laughable, because…they are, afterall, my images. The rights are not theirs to relinquish, but mine to licence to them- in this case for one time, first North American usage.

http://www.editorialphoto.com used to be a good source for sample contracts, etc, but is unfortunately now for members, so those starting out are unlikely to access the forms that would benefit them the most (and maintain our embattled status).

Our work is work. We earn our dues and it is opportunism by big organisations- be they magazines or agencies- to prey on those with less confidence in what they are worth. There is no prestige in getting your name in a publication if you had to get screwed by their contract to get there. Acceptance of treatment like this becomes the norm if it is accepted. Accept this as someone starting out, and you are accepting what you can look forward to.

You will find worthwhile insight on this previous post regarding rights:
http://www.lightstalkers.org/bbc-photo-submission-rights-grab

Hi James,

No need for apology (I have been treated worse and it did not affect me)

I understand everything you are saying. Of course the rights for the photos are your right. The part that I wondered (if I understood correctly) is that they are actually acting as an agent for sales within their network. In such case 50% seems reasonable – assuming those are sales you would not be able to do direct.

So is the issue the fact that you would be able to sell direct in their network, potentially at a higher price ? That is my understanding now of the problem. (sorry I am slow to learn)

Hi Eyal,

You’ve understood correctly: I am able to sell the images for the story directly to foreign editions of Marie Claire, therefore making the extra time (required to achieve the depth that we strive for) invested at my own expense worthwhile. I do not need to earn 50% of what may well be a sale that is not negotiated to reflect the market price of the work.

I don’t envy the challenge that you face in competing with wire services.

Good luck

hi james,thanks for the useful information.sorry,i forgot this was your original thread…so, you will be submitting your own contract/terms and conditions—and not use their contract? kat

US MC (United States Marines Corps?).

Had a dealing with Italian MC once, who were looking for some shots I had. I gave them my standard page rates and they were looking for something like a 1/4 of the price. So no sale. It hurts but I’m a good Catholic girl and whilst the adventure of two headed aliens seemed like fun, I have my morals! They came back to me saying the deadline had gone, but I think that was to save themselves embarassment. I mean do the people on the photo desk really give a #@&!! They get paid their weekly wage, bit of a pity if you have bills to pay yourself.

Suggestion- While this post is typical of the discussions here, would it not be possible to do some research on rates world wide and make a list of what pic-eds are willing to pay and for what. Perhaps the thing is everyone negotiates their own individual rates and by stealth the mags are just constantly chipping away at what we get. If we all knew about the standard rates for all the big publications would that not help to make the process transparent and arm us with the knowledge to negotiate at reasonable rates? I don’t mean the photographic associations rates, but what the mags are actually paying now? I reckon it would be a big job to nut out the differences between Time South East Asia and Time USA and so on, but could we actually do that without getting hassles about free trade bullshit?

Then maybe the guys that are just coming into the industry would know the lowest common denominator in terms of pay and not accept anything less. Whaddayareckon?

James,
I often find the photo editor/department has no role in drafting the contracts. It all comes from the suits in legal. And the photo editors often know how shit the contracts are—especailly with the BIG conglomerates. You can try talking to the editor about it and say you’ll sign the contract BUT will scratch out the offensive passage.

I’ve gotten those empty-camera-cheatin’ girlfriend contracts on stock images I’ve submitted AFTER I sent the image. Then I get a conract from the mag wanting to keep all rights all time. I just scratch-out the rights grab line (after I told the photo editor) and faxed it back. In that case they already used the image so what can they do…?
GOOD LUCK.

James, I’m sure we’d all be interested to know how this went for you.
Just remember that a contract is a negotiable instrument – no matter what the magazine tells you. Best case scenario is obviously a fair deal all ‘round. Worst case is one party walks from the deal. In between those points are shades of grey that may need to be negotiated. As Christopher says, draw a line through the offending material – initial your changes – and fax it back, making your editor aware of what you’ve done. Depending on the situation that could be the end of it or you might get a revised contract and have to go through the vetting process again. Ultimately you have the power to decline an unfair deal.

I think there’s a legal term for contracts sent too late or after the fact, something like Contract Under Duress (I don’t remember exactly). Basically, as I understand it, a contract forced on someone without having that time to review and negotiate is not legit. However, I don’t imagine that would be easy to demonstrate, especially if you’ve started work already. I know there are always times when you’re called and told the client had to have the story shot yesterday – I’m not sure how this would play out legally but suspect it wouldn’t go in your favour. Best to just approach it carefully from the beginning.

Editorial Photographers used to have sample contracts online, not sure if they still do (sans subscription). Does ASMP? EP UK? In Canada CAPIC has a sample on their website – I’m sure it’s best to get the one from the professional organization in the country in which you operate (ie: hopefully it’s been assembled by lawyers familiar with your local copyright law). Or get a media lawyer to make your own. ($$$!)

Perhaps there’s room here for a contract resources section?

Lisa’s suggestion of a listing of actual rates seems like a good one. I don’t know how something like that needs to be presented so it’s seen only as informational. But it would give some context for less experienced folks.

Chris, we met at Surat’s a few years ago, hope you’re well.

Cheers, N.

Hi James,
I don’t see how you equate this to a ‘shit sandwich’..you’ve been given a very standard first use contract. If you are not happy with M/C
syndicating your story don’t let them. Is the story your idea? If so you can also negotiate 60/40 in your favour, as I do. Marie Claire do operate a
system of discounts for other foreign editions. Typically a feature will sell again for £800, words and pics. Obviously this is discounted, but also
it is reflecting 2nd/3rd/4th use. I can assure you that you will have a very tough time selling to these other M/C’s yourself for more, but good luck if you try. Remember 2nd/3rd use etc gets progressively harder to sell.
I honestly think your time would be better off spent working on your next story.
The syndication dept in London typically want 3 months from 1st publication to you shifting the stuff yourself, if you have agreed to them syndicating. After that you can do as you wish anyway.
I put my stories out the day they go to press in M/C, and tell interested parties to hold if need be, generally that is not needed due to the long lead times of magazines.
If you are worried that the M/C syndication dept will saturate the market with your stuff thus making it hard for you to sell, don’t be. They are not proactive. They only really push to their sister publications, and even that they don’t do well..I would say 1 in 5 of my features sells to another foreign M/C.

If you would like to see a really shitty contract let me dig up my old BBC one, 24 pages of nonsense giving them everything including the first born. Sometimes you do have to walk away.
Remember that you do not have to agree to anything you don’t want to. If they like the story they will run it, syndication or not.
HTH,
Best,
David White
www.nospin.co.uk

If I was you James, I’d follow David W. advice. He seams to know what he is talking about.

And anyway we don’t know how many contacts you have and how good you are selling stories, some here in lightstalkers are very good and some very bad. The good ones will tell you to syndicate yourself. The bad or not interested so much in syndication will tell you to go for it.

Some photographers just don’t sell their work under a certain price, you have to have the power for it and know exactly what you are worth of, and that maybe the best solution to keep the market fair… if everybody did like that that would be great.

Until “photographer” will be the only profession without an Union… then get ready to get fucked without protection or find good clients and create relationships with your photo-editors that will permite you to have better contracts.

As a conclusion: any decision you may want to make, discuss it freely with your photo-editor with good arguments and politely he will respect you for that even if sometimes he/she will not be able to satisfy you on your requests.

all the best and good luck,

Gio

Chris, the photo editor kindly apologised for the back and forth of the contract issue. The fault is surely that of the legal department who do a marvellous and bloody job of achieving the best possible position for their client. Fortunately, I came out of this negotiation intact. Though I would not put myself in the position of not having a contract if I had to expend a lot of funds and was then at the dissadvantage of believing I could lose that expense.

As it stands, I maintained all rights of any future sale of the images with Marie Claire foreign editions getting the first opportunity to take the story. The new contract had one of those “worldwide rights for no additional consideration to include the Work in the following: (a) all print and non-print versions (by means and technologies, now known or hereafter developed)”. I had that dropped, but as a concession, granted web publishing rights limited to 90 days after the first print run- the clause had been for all time.

Thanks for all the solid advice.

David, thanks for sharing your experience in dealing with Marie Claire. The story was not my idea, but I authored the images. I’m now able to negotiate my rate for future sales to foreign editions of Marie Claire and will benefit from those sales 100%. Rates at different editions varies, but it all adds up.

Giddyup James Good for you! keep up the good work!

Thanks Lisa.

You may like this:
http://www.editorialphoto.com/resources/estimator/

ASMP has more info on calculating rates here:
http://www.asmp.org/commerce/estimator.php

Hey thanx for the link. I had it at one point but I had to reformat my computer after a couple of trojans ate it and I lost a lot of info. Its a great link, taa muchly!