The Scotsman newspaper group is imposing its third version of their Contract from tomorrow, March 1st 2001 against almost unanimous refusal to sign from freelance photojournalists.

Tony Marsh, Picture Editor of the Edinburgh “Evening News” & Kayt Turner, Picture Editor of “Scotland on Sunday” have told a number of their photographers, “Sign or you are not working”. Photographers are still waiting to hear what the Picture Editors of “The Scotsman” and the other titles will say. Contributors might well like to bear this in mind along with the information below when offered work form The Scotsman Publications Limited.

The photographers’ response

Here is what photographers working for the titles think about the contract:

To: John McGurk
Editorial Director
The Scotsman Publications Ltd
108 Holyrood Road
EDINBURGH
EH8 8AS

cc Alan Macdonald, Picture Editor, The Scotsman Tony Marsh, Picture Editor, Edinburgh Evening News Kayt Turner, Picture Editor, Scotland on Sunday Philip Thorp, Project Manager, Accounts Department Alex Aikman, Picture Editor, The Scotsman Magazine Clare Rand, Picture Editor, Spectrum/Seven National Union of Journalists Scottish Office The Moderators, Editorial Photographers UK and Ireland

Dear Mr McGurk,

re. TSPL Third Picture Supplier Contract (third draft)

We write to you collectively concerning the most recent contract which we have been asked to sign and return to you before 1st March. Having received information from a number of sources, including the NUJ, our lawyers and other photographers’ organisations, we are writing to inform you that while we wish to continue working for your three titles, we cannot sign the contract in its present form.

Our legal position:

The legal advice we have received is that the wording of the third contract is so flawed and contradictory, that it would lay either party open to abuse were they to sign it.

Our lawyers have drawn our attention to certain fundamental contradictions contained in the document. To name just two: Paragraph 2.2 begins with the use fees for magazines being included in the shift or job rate (ie repro fees WILL NOT be paid), yet eight lines down says that additional use fees should be renegotiated (i.e. repro fees WILL be paid). Both these statements cannot be simultaneously true. In the same paragraph, it mentions than self-generated work will be paid for at a “one-off fee” (i.e. repro fees WILL NOT be paid) but also that “additional usage…should be negotiated” (i.e. repro fees WILL be paid). Again, both these statements cannot be simultaneously true. We could go on, but we are sure you get the point. Since the credibility of any contract depends on its singularity of meaning, I am sure you would agree with our legal advisors that any contract which contains such multiple and contradictory terms loses its credibility regardless of the offer contained therein. I am sure you can understand our position, therefore, when our lawyers recommend that, regardless of the contents, we do not sign this contract.

The offer itself:

Nevertheless, your offer itself deserves further comment.

In your opening paragraph you say you wish to formalise the current terms under which we are working into a formal contract. This represents a significant change from the two previous contracts which attempted to change our current terms and impose new ones which favoured TSPL to the detriment of the freelance. Your decision to base the contract on our current terms (in operation prior to 1st December 2000, and the same terms under which we are currently working until this situation is resolved) is therefore one which is welcomed by us.

As a side note, we are generally encouraged by your response from the meeting last week between yourself and our representatives, and we are glad that a new and constructive line of dialogue now exists between the two parties. We were a little surprised to receive a third contract so soon after the second, but we understand that you, like us, would like this matter to be resolved as quickly as possible. We also think is commendable that TSPL acted so quickly in revoking the second contract after certain matters were drawn to your attention by our representatives.

The terms under which we currently work:

Since the third contract itself represents a much worse terms of employment than those under which we are currently working, but you have stated that you wish to represent our current terms we think this may be due to misunderstanding of how we work at the moment. We hope you won’t mind, therefore, if we remind you of our current mutually agreed terms.

Firstly, at the moment, we are employed on a day-to-day or job-by-job basis by the picture desks, and are paid for our time and (with the exception of the Evening News who have negotiated the right to reuse forever for free) the right to use the photographs once in the commissioning publication. If we work substantially over the allotted eight hours, an increased shift payment is made to cover our time. If our work is subsequently reused in the Evening News, Scotland on Sunday or The Scotsman (not including the magazines), we are paid a size-dependent mutually-agreed reproduction fee (“repros”). These terms are common to other newspapers in the same sector. (SMG have only this week confirmed that they are to continue this practice and indeed to increase the rates in their three titles.)

Secondly, we retain all copyright on all our photographs, while granting to the three TSPL titles the licence to editorial reuse in the three print titles. Certain photographers have also established the right to revoke this licence by removing their photographs from the electronic archive, and the validity of this action has also been supported with certain recent court cases relating to intellectual property rights. (As I am sure you are aware, only last weekend Scotland on Sunday’s business section carried an article on the importance of intellectual property rights illustrated by a photograph of Albert Korda who was successful in a recent court case to be paid reuse fees for the iconic photograph of Che Guervara). The retainment of copyright, and the issuing of a limited licence for editorial reuse is an industry-wide standard agreement.

It is also notable that not all photographs we currently supply are our own copyright. Notable examples include “collect” photographs or copies of works of art (for example when covering an exhibition). These points are worth considering in regard to paragraph 3.5 of the contract. On a similar note, while we note that in your covering letter to the third contract that we now retain our copyright, we must remind you it is something which belongs to us already.

Thirdly, after the commissioning publication has used our work, we have the right to resell it to other third parties, or to subcontract syndication to a specialist library or agency who usually work on a 50% of gross receipts (rather than the TSPL offer of 30% of net profits). This is also common to all other newspaper groups, and is notable that no other newspaper group with an in-house syndication department, such as the Daily Express or Associated Newspapers, ask for mandatory syndication as a term of freelance employment.

Fourthly, when carrying out work for the Company’s titles, a photographer working on the instructions of the picture editor, working within the law and the PCC guidelines, might reasonably expect the support of the Company if third parties begin to object to the photographer carrying out his work. We would ask you to consider this point in relation to paragraphs 3.3 and 3.8

Finally, the photographs we take at the moment will frequently break some law somewhere in force in some part of the world. As just one example: photographing a girl in a short skirt would be obscene under Saudi law and therefore not be permitted under the third contract. If the company lawyers insist that section 3.4 should remain unamended, could you please ask them on our behalf to list what we are still allowed to photograph. We do not imagine the list will be very long.

Our suggestions as to the way forward:

Our primary objective is the same as yours: to offer a fair, coherent and comprehensible agreement between our two parties. Like you we hope that as many freelances as possible can sign up to it. The current contract is none of these things. Whatever offer is made by you is to us a secondary consideration, and we have agreed with Philip Thorp all along that individual freelances will make up their own mind as to the virtues or weaknesses of any contract offered. But we cannot begin to consider any offer until we can see a contract or other form of agreement which our lawyers can commend to us.

One further apparent source of confusion throughout, and which became apparent in the most recent meeting, would appear to be discrepancies between what the contracts have actually said and the interpretation put on those things by the company. A case in point may be whether paragraph 4.1 of the third contract actually means “mandatory syndication” – while our lawyers believe it does, Philip Thorp appears to think otherwise, and from the most recent meeting with our representatives, it would appear you yourself were unsure. It may reduce confusion for you to state in a “plain English” letter what the contract will mean and what changes will be made to the terms under which we currently work. This will help reduce confusion not only between the freelances and the company, but also between picture editors and the accounts department. It should also speed up the process of getting this contract agreed. Again, we can all agree that we would like this situation to be resolved as quickly as possible.

It is worth reminding you of the history of this contract. The opening offer constituted in real terms a day rate increase of 13p in return for waiving all right to reuse across all TSPL papers. We now understand that the first contract, issued by TSPL in last December and revoked by the company within five hours of being issued, constituted the most wide ranging rights grab ever attempted by a newspaper group in the United Kingdom, mainland Europe or the United States. We also have received information that the mandatory syndication offer made in the second contract (30% of profits, rather than the more common 60% of gross receipts) represents the worse offer made by any syndication agency.

The third contract, while representing a movement, still represents the worst conditions for freelances working for any UK national newspaper group. We also understand that no other newspaper group requires its photographer to be physically escorted to the picture desk from the reception – something which since 1st December is now routine for all photographers working in the Edinburgh office, and which appears to be in response to Snap’s support from the NUJ. (Philip Thorp has stated this is to do with “fire regulations”, but as far as we are aware, we are not more flammable than freelances in other departments who are not required to be escorted.)

Despite all of the above, we look forward to continuing to work for the company titles, and in the meantime we hope you will give these matters the serious consideration they deserve. Further to this, we would like delegates of Snap or the NUJ to continue to represent our interests in the matters discussed above.

Yours sincerely,

Scottish Newspapers’ Association of Photographers (SNAP)