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Five Clause Trick - IPC's Secret Contracts

23 July 2002 - EPUK

After last week’s rumpus over IPC’s new Core Contributors’ Agreement comes the intriguing news that the company has not one contract on offer, but five.

After last week’s rumpus over IPC’s new Core Contributors’ Agreement comes the intriguing news that the company has not one contract on offer, but five.

The news emerged gradually. A memo was recently circulated by company Intellectual Property Manager Mark Winterton to IPC executives outlining plans to reduce the current eighteen [!] contracts to rather more manageable levels. Winterton also mentioned the five contracts in passing to photographers who called him last week over the Core Contributors’ Agreement, although he didn’t go into details. And company CEO Sly Bailey confirmed their existence in a letter to the Press Gazette last Thursday.

The five contracts run the gamut of acceptability, from single use to the now notorious “all rights” version. The first – “One Use” – is exactly what it says, and is aimed mainly at agencies; not surprisingly since few self-respecting agents would sign any of the other versions.

The second – “First Use” – is the closest to acceptable industry standard commission contracts. It’s intended for “contributors who are essential to use but who refuse to grant “any rights to the title” or – and here it starts to get interesting – “if the commissioned content has no re-use value”.

The third and fourth – “First Use With Extensions” and “Qualified Rights” – help themselves to an increasing share of the pie without any immediate benefit to the contributor. “Qualified Rights” will be of particular interest to photographers with their own agency syndication arrangements since it grants IPC exclusive world-wide syndication rights “for the life of the copyright”.

The fifth – “All Rights” – forms the basis of the Core Contributors’ Agreement.

To say that all five contracts are on offer is being generous to IPC of course, since the company has apparently only mailed the all rights version to contributors, most of whom are still unaware that different options are available.

Careful Now…

Sly Bailey’s responses to the Press Gazette and National Union of Journalists over the Core Contributors’ Agreement row were rather carefully worded; in fact the casual reader could be forgiven for getting the impression that IPC isn’t interested in acquiring copyright at all. But that’s because Bailey was being economical with the actualitÈ. It’s only when her comments are read alongside Winterton’s memo and the Core Contributors’ Agreement that the whole truth is revealed: IPC aren’t interested in copyright except when it’s worth something!

Not convinced? Then read the following three statements.

“It is not, and never has been, IPC Media’s intention to purchase ‘all rights’ on every commission” – Sly Bailey, IPC Chief Executive Officer, in the Press Gazette

“All Rights is the preferred rights category where the commissioned content has re-use value” – Mark Winterton, IPC Intellectual Property Manager, in the company memo.

“As a core contributor to IPC Media it is understood that any future Work(s) you are commissioned to do by XXXXXXXXXXXXX will be on an “ALL RIGHTS” basis unless otherwise agreed in writing.” – IPC Core Contributors’ Agreement

This ought to set alarm bells ringing in the heads of any photographers who are offered an all rights contract by IPC. The corollary of course is that it’s rather depressing news for any photographers who receive a call from an IPC publication when the company doesn’t demand all rights. Hey! We’ve got a commission for you, but it’s so crap we don’t want the copyright!

Of course the existence of five pre prepared contracts could be construed as good news, not bad; it shows that IPC are apparently prepared to negotiate. But by sending out only the all rights contract, along with an instruction to sign by August 1 or the recipient’s account would be “de-activated”, IPC managed to deliver precisely the opposite message: sign or else.

Far more sensible would have been to mail the five options to contributors and let them mark their preference. The only thing left to negotiate would be fees, and even that could be dealt with in advance: a five option contract could have a built in sliding scale of fees dependent on the rights the publication wanted to acquire. Whether IPC would be prepared to pay fees commensurate with the rights demanded in the Core Contributors’ Agreement is another matter.

The Lady Doth Protest Too Much, Methinks

The fact that IPC chose to mail only the rights grab contract and withhold the others rather contradicts the company’s protestations of innocence. A variety of reasons have been produced by IPC to justify the Core Contributors’ Agreement. It’s only to “conform with AOL Time Warner requirements”; the old contract was due to expire; and anyway we only sent it to people who’d agreed in the past to give up all rights.

This last is disputed by photographers who have received the Core Contributors’ Agreement and insist that they have never previously signed an all rights deal with IPC. In the Press Gazette Sly Bailey said that IPC is “happy to provide copies of previously signed agreements to the individuals concerned”. Hopefully photographers will take her up on the offer – the results could be interesting, and may at least lay to rest the argument over whether the contract was sent to contributors who hadn’t previously signed, or not.

And what are the AOL Time Warner requirements that IPC claim they must conform to? They can’t have anything to do with copyright since no other AOL Time Warner publications have anything like such an onerous contract.

Come to that, isn’t it an extraordinary co-incidence that all the IPC contracts happen to expire just when IPC suddenly need to conform with unspecified AOL Time Warner requirements? In fact, what expiry date? None of the IPC contracts seen by EPUK have an expiry date.

The best reason of all however is the claim that IPC have “taken this opportunity to tidy up our commissioning system and ensure that all parties are fully aware of the rights category under which specific work was being commissioned.” But by only mailing the all rights contract IPC ensured, or attempted to ensure, that contributors were unaware of the other options available!

IPC’s argument that the Core Contributors’ Agreement is merely an update to an existing contract is a red herring anyway. A bad deal is a bad deal is a bad deal irrespective of the date of its introduction, and the Core Contributors’ Agreement is clearly a very bad deal indeed.

The Americans Made Us Do It

One would have to be extraordinarily charitable or extremely naive – and we’re neither – to believe that the Core Contributors’ Agreement is anything other than it clearly is: a classic rights grab disguised as mere administrative tidying up at the behest of the company’s foreign owners. The latter was a particularly neat twist which some contributors fell for, immediately blaming AOL Time Warner rather than looking closer to home for the guilty party.

There is a telling sentence near the end of Mark Winterton’s memo. He writes: “After consultation with the Editor’s Group it was suggested that some titles may wish the communication with the contributors to come from myself.” Translation: alarm bells were already ringing at some offices at IPC. Editors at “some titles” clearly realised that the Core Contributors’ Agreement would cause problems and wanted nothing to do with it, or at least didn’t want their names on the letter accompanying the contract. Therefore the dirty work was passed to Mark Winterton, hence the first thing many commissioning editors knew about the new contract was when they began receiving irate phone calls from contributors.

IPC could do all concerned, but most especially themselves, a big favour by just forgetting about their ill judged rights grab and openly offering the full range of contracts to their contributors. Hopefully the fact that the five contract options are now public will encourage them to do so.

But if they can’t bring themselves to do so, just remember the next time you’re tempted to sign an all rights contract because you think your pictures are worthless: IPC know better.

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