Regular freelances face the immediate loss of future work from the two Guardian titles – whose corporate values include honesty, integrity and fairness – if they fail to agree to the new terms, which are set to come into force on January 1st 2008. GMN say that they are not obliged to vary the contract in any way, and any variations to individual contracts must be approved at managing editor level.

In what many photographers have taken to be a clear threat, Hahn told EPUK: “In fairness to both parties, the photographer doesn’t have to accept these terms but equally we are not obliged to commission on anything other than standard terms”

On Tuesday regular Guardian and Observer freelances received an email from Guardian rights manager Robert Hahn claiming that the controversial new terms were reached “in conjunction with the National Union of Journalists and other bodies”, a statement which seems intended to mislead by adding credibility and authority to the new terms to persuade photographers to agree to the new contract. The full email can be seen here.

But it emerged last night that not only had the NUJ not given approval to the final version of the Guardian contract, its officials had opposed key clauses which appeared in the published version.

U-turn on NUJ involvement

Hahn told EPUK that the terms “have been negotiated with the NUJ and other bodies over a lengthy period of time”.

When pressed for a clarification as to the other unnamed organisations who approved the contract, GNM admitted that the only “other body” to have been involved with the contract talks was the British Association of Picture Libraries and Agencies (BAPLA) whose involvement related entirely to how any future changes would affect stock libraries.

Hahn was then asked by EPUK to clarify whether the NUJ and BAPLA had both specifically agreed to the published terms and conditions. Hahn told EPUK that both organisations had done so.

But seven hours later, Hahn appeared to back down, admitting that both organisations had objected to key clauses which still appeared in the final contract. “The NUJ would not endorse … the uplift on web rights of 5% which they think is too low”, he wrote. “The NUJ and The Guardian agreed to disagree on this. The other issue which was the subject of debate between us was the voluntary/involuntary nature of the licence”. He added that the GMN had refused to negotiate with the NUJ on this point.

“This is not what the NUJ agreed to.”

In a strongly worded email sent yesterday to GNM Rights Manager Robert Hahn, NUJ Freelance Organiser John Toner accused both Hahn and Guardian Managing Editor Chris Elliot of breaking assurances given during the contract negotiations.

Toner told EPUK that his position throughout the negotiations had been that any syndication should be decided on a case-by-case basis, rather than by a blanket contract.

In the email, Toner writes: “You assured me that the photographer would be free to choose which rights to grant and which not, and that a written record of the agreed licence would then be sent to the photographer. Chris Elliott stressed that photographers would not find themselves dropped for not agreeing to all the terms….Your letter makes it clear that the intention is just the opposite.”

“Throughout our lengthy negotiations, I acted in good faith. I had always accepted that you were, too. …For whatever reason, it seems that I was wrong”, writes Toner.

“This is not what the NUJ agreed to and for that reason I must now disassociate the NUJ’s name. I request that you remove your reference to the National Union of Journalists”

Contract “does not reflect what was agreed.”

The new contracts offer an additional 5% extra on the shift rate for use for use on the Guardian websites, 1.5% extra for use in the digital facsimiles of print editions, and that GNM should have the exclusive right to market and syndicate any commissioned photography for a period of sixty days with 50% of net revenue being paid to the freelance with the remainder kept by GNM.

This mandatory syndication clause overrides any existing arrangements freelances may already have with other agencies, and allows the Guardian to profit from the work of freelances even when if it appears in third-party publications.

“The NUJ agreed to a voluntary licence in which photographers at the point of commission could opt into a limited number of options. Included in those voluntary options would be a 60 day syndication agreement, either through Eyevine, the Guardian’s syndication department, or by themselves” says Toner. “I feel that what the Guardian has put in writing does not reflect what was agreed.”

In addition, freelances are instructed to seek permission from the GNM before attempting to syndicate their own work, and to try and ensure that a credit appears mentioning that the photographs were first published in the Guardian titles.

“Trying to achieve is a fair outcome”

The NUJ also asked for an increase in the reproduction fees paid for web use, which are currently around £5 on top of the job rate or £10 extra on the day shift rate for perpetual use on the Guardian’s websites. GNM rejected calls for an increase, saying that the 5% extra payment was in line with the fee that Guardian writers received.

“To be frank with you, we’re investing huge sums of money, particularly since the Berliner redesign, in photojournalism.”, Hahn told EPUK. “But that comes at a cost and we need to be able to secure the maximum return on that investment.”

“What we are trying to achieve is a fair outcome for all parties in creating imagery. At the moment we are commissioning photography to go with our stories, and then we have no further interest in those pictures once we publish them, and that is a situation we would like to change.”

In order to gain this extra revenue, GNM announced that their existing stock library is to be marketed through Alamy Images. While they intend that syndication of newly commissioned stories and photographs should be done inhouse, they have said that in exceptional circumstances they may also use Eyevine with whom they already have an optional syndication agreement for an estimated 50 to 60 photographers.

“Hold the Guardian to their promise”

Hahn said that past syndication deals with Eyevine had been profitable: “I can’t go into figures, but the photographers in question have made a lot of money out of it”. Hahn also refused to disclose the revenue targets for the new in-house syndication department.

At the time of going to press, it was unclear what action if any the NUJ would take against The Guardian, and whether a house agreement finalised less than a month ago would be thrown into jeopardy.

At the time, the NUJ threatened to go on strike in GNM broke any of the terms of the new agreement, which guaranteed staff a minimum £30,000 wage and a 4.9% pay increase with no clause preventing compulsory redundancies.

John Toner was last night unequivocal on the new contract. “I’m recommending to NUJ members to hold the Guardian to their promise to me” he told EPUK, “and to reject any terms of the contract that they don’t agree with.”