Recently, the American Society of Media Photographers (ASMP) endorsed the work of the Stock Artists Alliance (SAA), which is engaged in negotiations with Getty Images. ASMP did not comment on the SAA’s position on the contract terms, as it had not received nor been asked to review a copy of the new Getty contract. ASMP endorsed the work of the SAA since ASMP is always supportive of reasonable efforts by photographers to improve their interests.
In mid April, Getty Images sent a copy of its new contract offering to ASMP, after a phone call in which it assured this writer that its new offering demonstrated Getty’s concern for photographers as well as its intent to stop the erosion of the photographer’s rate of return. ASMP responded that it was certain that the new contract would never pass its review with an approval as we had no reason to believe that the egregious behavior of Getty toward photographers had ended or would end. We further explained that as long as Getty failed to settle fairly with ASMP member Penny Gentieu, ASMP had no reason to even consider entering into a dialogue with Getty. Penny refused to sign the last contract issued by Getty, and she has suffered serious consequences ever since. She had to get a court order just to audit her records at Getty, and she filed suit because of the discrepancies discovered and the alleged breach of her contract by Getty.
Till yesterday, no photographer asked ASMP to review or comment on the contract, so we did not. ASMP has a policy against publicly inserting itself into contractual disputes between two parties unless requested. Yesterday, for the first time, a photographer being offered the contract asked ASMP to review and comment on it. ASMP has analyzed the newly offered Getty contract and its Brand agreements. Here are our comments.
ASMP agrees with the comments on the contract published by SAA, and, as we understand, drawn by the SAA’s attorney. The legal analysis points out the major flaws in the contract. It would be redundant to restate that legal analysis and those objections to the Getty contract, so ASMP offers its opinion from the perspective of both common and good business sense. Summarizing our opinion can be brief. The Getty Images contract currently under discussion between SAA and Getty is offensive, insulting, unfair, unreasonable, guileful, and, if it were not a legal document, drafted by attorneys, we would call it a “con.”
The language is so obtuse and convoluted that it deviates from the normally difficult language of a contract to become almost impossible to navigate without countless hours of expended effort. Was that done to assure that photographers could not understand it, or was it to assure that they would receive unacceptably high fee estimates from attorneys whom they might seek out for help? It certainly was not done to make the contract clear or understandable.
The contract has marginal boxes with notes that are supposed to make the language in the contract body more understandable. Nice trick, but more guile. For example, in one box it states: “The Brand Company…..will give you credit where appropriate, for instance, in editorial uses.” That reads as if the photographer WILL receive credit in editorial uses, but the actual body of the contract states: “The Brand Company shall advise Clients of such credit and will encourage, but not obligate them to do the same where appropriate.” ASMP members in the 1950s and 1960s fought hard to secure the right to credit on editorial photography. Many lost work and clients in that fight. Such credit became an industry standard. Getty now seeks to reverse those gains. Photographers are obviously insignificant in the Getty value scheme. So their explanation in that one little box is not supported by the contract’s language. Is that guile? ASMP thinks it is.
Just as important as Getty’s guile is its disregard for the rights of photographers. The contract starts out acknowledging that the photographer will retain copyright in all images created by the photographer. Then it proceeds, in clause after clause, to take away the photographer’s right to exercise most of those rights. Whenever it allows the exercise of a copyright right by photographer it conditions that exercise so that the company can stop it if it wishes.
Perhaps the crowning glory in the annals of egregious treatment of photographers is this combination punch. In the Brand Agreements that accompany the contract Getty is given the exclusive right to do anything to the images accepted from a photographer, including make derivative works, combine, or recast works, etc. The contributing photographer has no rights in any of these second generation works. So, if Getty adds a simple prop to a photograph the photographer loses all rights in the resultant work even though it might be substantially similar (the infringement test) to the photographers work. Could the photographer take action against Getty or one of its Brands, affiliates, clients, or anyone? Could a photographer take action against Getty, if it hired another photographer to actually duplicate the original photographer’s image? No, the photographer who has been intentionally copied cannot take legal action. Why not? Because the contract grants Getty the exclusive right to bring such an action. The photographer cannot make such a claim without Getty’s approval. At best the photographer might be able to sue for breach of contract, but with Getty holding such broad licensing rights and the exclusive right to file claims over accepted images, the suit is unlikely to be successful.
What you say? Getty would not do such things! When the Gentieu v. Getty case is finished, we will all see if it would do such things. Parts of this contract seem to be an effort to assure that no photographer can ever put Getty in the position that Penny Gentieu has put them in by virtue of her lawsuit. If she had signed this contract, she would have no right to sue or compel the audit that Getty refused till the court ordered it.
In summary, ASMP thought that indentured servitude went out with the Civil War. It appears that Getty is working hard to bring it back. It is not only offensive to expect a photographer to sign the contract, but it is insulting just to offer it. ASMP urges every photographer offered the Getty contract to reject it. To accept it is to seal your destiny as a slave of the Getty empire. Do not surrender your dignity to Getty!
Richard Weisgrau, Executive Director
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