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It's not legal: lawyers brand Scotsman contract "fatally flawed and self-contradictory"

27 February 2001 - EPUK

A preliminary report produced for photographers working at The Scotsman Publications Limited (TSPL) has found that the “unclear” and “misleading” third Picture Supplier contract contains major legal flaws.

As a result Scottish Newspapers’ Association of Photographers (Snap) has written to TSPL senior management advising them of the problems that exist with the contract. At the time of writing it is unclear whether TSPL will revoke the contract as a result. If they do so it will be the third contract which has been withdrawn due to Snap’s intervention – the second within a week.

At Tuesday night’s Snap meeting it was unanimously decided to write to TSPL Editorial Director John McGurk informing him of the problems that Snap had uncovered. Senior TSPL sources have indicated to Snap that they believe the third contract was not fully legalled by The Scotsman’s in-house legal team before being released. As a result, in two separate area, the contract states that reproduction payments will not be paid for work, and then contradicts itself by saying that reproduction payments are payable.

In effect this means that a picture editor could think that no reproduction fees for reuse of work are payable to a freelance, and the freelance could expect payment – under the contract both could be correct.

Snap understands that this could have far reaching effects on the contract as a whole. On legal source said: “The point of a legal document is that it can only mean one thing. There can be no ambiguity at all. If it says two things that contradict themselves, then by definition it is not a legal contract, and a company cannot expect someone to sign up to it”

At the time of writing this update it was believed that TSPL are not going to change their deadline of 1st March to have photographers signed up despite freelances having received no credible legal contract to sign.

It has also been unanimously agreed that the third contract is a far, far worse offer than the existing terms and conditions.

As a reminder how bad the third contract is, here are just some of the things it contains:

  • ALL rights to be granted to TSPL to use in ALL media for ALL time (including Internet, advertising, etc.) for no extra payment. THIS IS THE WORSE OFFER MADE BY ANY UK NATIONAL NEWSPAPER GROUP, EVER.
  • Mandatory syndication regardless of any pre-existing syndication deals made by the freelance by TSPL. Want to sell your pictures through another agency? You can’t. Don’t want TSPL to sell them for you? You can’t stop them.
  • NO reproduction fees for work produced on shift and used in the same publication.
  • A shift, previously eight hours long, is now as long as the picture editor dictates for no extra money.
  • And a disclaimer which states that the company will NEVER help the freelance in the event of any difficulty whilst they are doing their job.

The company has described the situation as “take it or leave it”, which, you may remember, they have said twice before. And twice before they have backed down after a collective show of strength from freelances.

At the moment, and as you will see from the letter, Snap still believes that negotiation is the way to resolve this problem.

The implications of this contract are far reaching. At least THREE other newspaper groups are waiting for the outcome of this contract dispute before deciding whether to impose their own. So if TSPL succeed, other newspaper groups will follow. If TSPL are persuaded to take a more realistic stance, other newspaper groups will think twice.

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