NAFP Wins Half a Loaf

132

March 20, 1998

Associated Press Settles Lawsuit With Freelance Photographers; Admits
Photographers Own Copyright

The Associated Press has agreed to settle a lawsuit brought by three freelance
photographers and the National Association of Freelance Photographers. As part
of the settlement, AP recognizes the claims of copyright ownership by the three
photographers.

In exchange, the photographers have agreed to permit AP's continued use of the
five images contested in the litigation. Both sides further agree to drop all
remaining charges, and to cover their own expenses.

The AP had maintained that the check legend, which is printed on the face of all
its freelancer paychecks, transfers copyright ownership in all images created
while on assignment for the news agency. The NAFP argued that by crossing out,
or altering the legend, there was no copyright transfer. The AP admission
confirms the NAFP's contention.

Kevin Larkin, president of NAFP and one of the plaintiffs said, "We are pleased
we were able to force the AP to admit that their
legend is not an ironclad transfer of all rights, and, although we
did not achieve the grand victory we had hoped for, we have proven their unrelenting
claims to our copyrights to be without merit."

The AP admitted it could not claim copyright ownership
to photographs of Wayne Gretzky which were created by Mr. Larkin. The admission
was based on the fact that Larkin had crossed out, and thus nullified, a legend
on a check which AP issued to pay Larkin for the assignment.

The photographers will be paid nothing extra when AP reuses their images or hands
them over to another publication. But, the photographers may re-sell their images
themselves and put these images with stock agencies. Since stock agencies, in
general, have a better track record than the AP in finding historical images and
selling secondary rights the photographers have a chance of making additional
income from this source.

While this settlement covers material that had been previously produced for AP, it
doesn't do much to solve the problem of future production. AP has presented a new
contract to all photographers and is insisting that they sign it before they
will receive any new assignment from AP.

The contract sets very low "rates" for each type of assignment and also
covers every image produced on the assignment. In addition AP will no longer
re-imburse photographers for any expenses including mileage, tolls, film and
processing costs.

The new contract reads in part:

"You agree to and do transfer to AP copyright in photographs taken by you while on
assignment for AP. It is a common practice for AP and other news reporting
organizations to use freelancers as non-employee providers of photography on an
as-needed basis. As an independent freelance photographer, you agree that you are not
entitled to and waive any compensation other than the per-assignment rate, including
employee benefits such as pension or retirement plans, workers compensation,
unemployment and health insurance.



"This letter agreement replaces any and all prior understandings between you and
AP and can be changed only when mutually agreed to in writing. ... AP wishes to
have consistent understanding with all its freelance photographers....



"By signing and returning one copy of this letter, you agree to its terms for one
year from the date of your signature. ... Our agreement will renew automatically
for additional terms of one year, unless either you or AP provide the other with
written notice of a decision to terminate or modify it at least thirty days prior
to its expiration or anniversary date."

According to Kevin Larkin, there is also a new set of rules which prohibit freelance
photographers from using any AP equipment which includes pool cameras, lenses and
transmitters. It also forbits the use of the bureau's phones. Freelancers are also
prohibited from performing staff chores such as processing film, editing, scanning, and
caption writing. "The staff isn't happy," he said.

AP has tried to claim that what they are doing is common practice, but in-fact, other
new agencies and publications are handling things in a much different way. New
Orleans freelance photographer David Rae Morris, who has worked for AP for
three-and-a-half years, and became one of the first to refuse to sign the new
contract points out the inequalities between the AP's contracts and the contracts
of other organizations.

"Of particular note is the Reuters contract with its freelance
photographers. Not only does Reuters guarantee a day rate, plus all
expenses; they only lay claim to the copyright for 72 hours, after
which full rights revert back to the photographer. While Reuters
does claim ownership of the transmission negative, they give 45% of
all resales to the photographer.



"Likewise, Business Week magazine offers a day rate of $350 plus all
expenses and specifies that the photographer maintains all rights
not transferred to the magazine. In addition to this, they will pay
an additional $100 for electronic rights and will pay for the re-use
of archived photographs. The Los Angeles Times claims exclusive
first time rights in the five-county metro area. While maintaining
the right to hold the copyright of photographs shot while on
assignment, the Times will return all outtakes and allow the
photographers to resell the images. The Washington Post's contract,
while not nearly as detailed, does acknowledge that the photographer
is sole owner of the copyright and allows the photographer to make
resales on images after they have appeared in the newspaper. The New
York Times has no freelance contract at all."

While AP wants a uniform contract country wide, the rates they pay for these rights
vary greatly from city to city. There are also variations in the
amount of expenses they will pay with different bureaus taking different positions.
NAFP (National Association of Freelance Photographers) has prepared a schedule of
rates that is printed at the end of this report. This schedule will be updated on
the NAFP website as they get new
information.

Paul Hurschmann, one of the defendants in the case acknowledged, "There is probably no
chance that the AP will use anyone who does not sign their contract."

Larkin added, "The AP has refused to negotitate with any of the photographers who have
proposed counter contracts. No one who has refused to sign the contract when
asked, has been given an assignment by the AP."

The hope is that the vast majority of freelancers will refuse to sign the contract and
the AP will be forced to reconsider its position. This is especially
true considering the fact that the AP wants photographers who own all the equipment
they are likely to need, and have the expertise to edit and transmit from remote
locations.

It is believed that at least a dozen photographers, and maybe many more, have been
cut off so far as AP goes bureau by bureau, state by state, implementing their
contract. The officers at NAFP admit they do not have an accurate count.

Some photographers are even reported to be trying to form their own co-ops to compete
directly with the AP. For more information about NAFP see their on-line site at:
http://members.aol.com/thenafp/index.htm

The AP is presenting varying rate schedules to its freelancers at its
bureaus throughout the country, in conjunction with its latest contract.
Each bureau is breaking its schedules down into various categories for that
particular bureau. Even the classifications vary from bureau to bureau.

We have summarized those schedules that we have seen, thus far, and will
update this page as more rate schedules become available. Since there is a
limited amount of data available at this time we will begin with very
general comparisons. The bureaus appear to be dividing the rate schedules
into either "zones" or "classes."

Some bureaus are classifying the rates based on the type of assignment,
others purely on distance traveled and/or number of assignments, without
regard for the type of job performed. Each bureau appears to be offering a
token premium for transmitting photos, (ranging from $15 to $30, regardless
of number of photos transmitted).

The common thread among larger metropolitan areas appears to be that
assignments are classified with one rate for those performed within the
metro area, and a higher rate for those performed outside the metro area,
with little to no regard for distance traveled.

For smaller metro and rural bureaus, the rate schedules appear to disregard
those same categorizations of assignment, basing the rate solely on distance
traveled.

Remember, these rates include all expenses, including, but not limited to
film, mileage and equipment usage; and copyright and all materials are
expected to be surrendered at the end of each assignment.

Rates in the smaller metro and rural bureaus appear to based on either
single assignments, such as spot news, press conferences, legislature
coverage, sporting events and features; or multiple assignments of a similar
nature.

For single events, the rate of pay appears to average about $75 where no
travel is involved and increase as additional travel is necessary up to a
maximum $250. An interesting fact is the cutoff for each level seems to be
based on a random mileage number. For example, if you were required to drive
99 miles to an assignment and back you might receive $150; drive an extra 2
miles and you might then get $250. For multiple assignments, or "day rates,"
the rate appears to average around $125 for no travel and increase to approximately
$300 for travel to the"outer limits" of your bureau's coverage area.

Again, these are flat rates with no additional fees paid for each roll of
film shot on personal equipment, no additional fees paid for each additional
mile driven on personal vehicles, no additional fees paid for each
additional transmission sent on personal computers and scanned on personal
scanners (only a one-time extra fee if you transmit one or 10 images of $15
- $30).

There are no additional fees if the job takes twice as long as anticipated,
or if you must retransmit photos. There is no extra payment for transfer of
copyright on all images -- including outtakes.

And, at the end of each assignment all materials must be submitted to AP,
never to be seen again. If a contest is entered, the copyright belongs to
AP. If a photo becomes a Pulitzer Prize winner, it belongs to AP. If
thousands of dollars are made from resales of an image, it belongs to AP.
Even if a portfolio print is needed, good luck, they belong to AP.