Found Media: Unhappy New York Times Photographers

Last month The New York Times for the first time required its freelance photographers to sign contracts. The photographers say this contract gives the Times rights it has never had before, and they're hoping the paper will modify the contract before requiring them to sign. A group of regular freelancers for the Times met in Brooklyn last Sunday to draft a letter outlining their concerns, which the paper replied to yesterday. Here's the photographers' letter and the paper's reply.

Mr. Arthur Ochs Sulzberger Jr., Publisher
Mr. Bill Keller, Executive Editor
Ms. Jill Abramson, Managing Editor
Mr. John M. Geddes, Managing Editor
Mr. David Frank, Acting Director of Photography
Mr. William E. Schmidt, Associate Managing Editor
The New York Times
229 West 43rd Street
New York, New York 10036

Dear Mr. Sulzberger, Mr. Keller, Ms. Abramson, Mr. Geddes, Mr. Frank, Mr. Schmidt:

I am one of the undersigned freelance photojournalists who works regularly for The New York Times. The Times recently sent me a contract and issued an ultimatum: I will no longer be hired unless I sign it. I am writing to object to the contract's substance and to request a meeting with management to discuss a more equitable arrangement between The Times and its freelance photographers.

The contract contains several flaws and ambiguities that need to be addressed, including:

• Until recently I have worked for the New York Times without a contract, and I have retained the copyright to my photographs, as is standard under copyright law .The work-for-hire clause radically alters these conditions by seizing my fundamental rights and assigning them to The Times. (par. 3 + 4)

• The ten-day embargo would deprive me of the ability to license my photographs to news magazines within the weekly news cycle. This is only one example of how The Times is proposing to take a substantial portion of my income—while offering nothing in return. (par. 5)

• Copyright, privacy, and libel violations generally arise as a result of a photographs use. The liability provisions (par. 8) do not indemnify me against improper use by The Times of an image that I would not control.

• The syndication provisions compromises my exclusive right to license my pictures based on the sole ownership of copyright. This would make The Times Syndicate my direct competitor. It could also put me in breach of existing agreements I might have with photo agencies. (par. 6)

• The provisions restricting association and identification (par. 7b) are unworkable in practice. The Times has always relied on and received my professional judgment and ethical vigilance. Am I to lie or remain silent when someone asks for whom I did an assignment? One of the ethical responsibilities of a photojournalist is truth-telling. The context in which a picture arises, and the institutional affiliation of the photographer when the picture is taken, is crucial information to any critical viewer of a photograph. I am deeply troubled that the flagship of free journalistic expression in the United States would assail my First Amendment rights.

The Times has long been an icon among American newspapers. The outstanding work of dedicated photojournalists has helped to establish and maintain its leadership role. The paper has a distinguished history of journalistic integrity with a tradition of exposing injustice and championing civil rights. This contract is inconsistent with those ideals.

I understand that The Times operates in a competitive environment. Electronic distribution and technology pose unique challenges and it is essential for us to meet these challenges together. The Times has an interest in retaining talented, committed freelance photojournalists: As the paper's coverage of September 11th and other world events has demonstrated, freelance photographers are an integral and important part of the Times' overall excellence.

I am very proud of and value my relationship with The Times. I request a meeting at the earliest convenience to address these concerns. Several New York-area photographers have offered to be points of contact to arrange this meeting. Please contact Alan Chin, Susan Markisz, Brian Palmer, or Christopher Smith. I look forward to continuing a productive, professional and mutually beneficial association with the New York Times.

This letter was signed by 87 photographers who work regularly for the Times and also by 184 supporters.

* * *

Dear NYTFPJ Members,

Thank you for your e-mail of March 31 to our senior newsroom executives. While we are not able to accommodate your request for a meeting, I did want to respond to the points you raised in your letter.

First, let me note that we believe this contract is clear, concise and fair, and that it provides both parties with optimum flexibility concerning works that appear in The New York Times and International Herald Tribune (IHT). Additionally, the spirit of this contract presumes that both parties will act in good faith.

As to the specific points in your letter:

We believe using a written contract is in the best interest of the newspaper and its freelance photographers so that the terms of a freelance assignment are clear to all parties. The use of such a contract is a common practice in the industry. As newspapers move beyond printed products, rights issues have become more complex. This contract addresses such issues. And in fact, we believe the joint copyright provides the optimal flexibility for both the newspaper and its freelance photographers. We also believe that the terms of this contract are more favorable to freelance photographers than many of the contracts in use today.

As to the embargo periods, the contract allows for significant flexibility. After a brief 24-hour embargo the photographer is able to sell any unpublished photos from the work. The 10-day embargo relates only to the photo(s) that appear in The Times or International Herald Tribune, which we believe is reasonable. However, it remains the photographer's decision as to whether to sign the contract.

Also, in reference to compensation, your members who shoot in the metropolitan New York area may also wish to note that last month we increased our metro day rate by $50, effective May 1, in order to bring them to parity with our national day rates. In addition, following discussions with freelance photographers and a review by our newly appointed Standards Editor, we have removed the cap on revenues frompromotional and advertising reuse sales.

Regarding paragraph 6, please note that we share syndicated photograph revenues with the photographers. On the other hand, the photographer is not obligated to share with us any revenues he/she receives from the sale of the work. Those who received this contract, who work with us regularly, understand that we advocate for them. Furthermore, we do so in a very competitive environment.

As to any concerns your individual members might have about their existing agreements with photo agencies, our photo editors would be pleased to speak with them or their representatives individually to determine what effect, if any, signing the contract would have on them.

Regarding paragraph 7b, photographers may state that they have shot for The Times, although they would be—as they already are—prohibited from misrepresenting themselves as staff photographers from The Times. Photographers who already work with us will recognize that the agreement does not change their working relationship with us; it merely confirms practices they have already been following vis-a-vis our Ethical Journalism guidelines.

Regarding paragraph 8, we simply ask the photographer to stand behind the images because, as between The Times and the photographer, the latter is in a better position to know how the photograph was obtained and whether the photograph is original, or violates another person's rights. A photographer would not be responsible for our improper use of the photograph. In addition, we do not insist that they indemnify us for any third party claims, which most agreements do require.

Sincerely,

William E. Schmidt
Associate Managing Editor
The New York Times