Photo Business News & Forum: The AP 2008 Contract Analysis

Here's Section 6, followed by commentary:

Section 6. Royalty.

6.1. AP shall pay to Freelance Photographer, during the life of the Freelance Photographer only, a royalty of Twenty-Five Percent (25%) of the net revenue collected by AP (the "Royalty (ies) ") from the a la carte licensing within the United States of qualifying Assignment Photos to third parties that are not (i) members of AP, or (ii) customers on a fixed, metered or other subscription basis of AP, and AP's subsidiaries or agents , (such licensing, "Assignment Photo Licenses"). For the avoidance of doubt, the phrase "Assignment Photo Licenses" shall not include: (a) licensing of one or more Assignment Photos via an images subscription service to members and customers of AP and its subsidiaries and affiliates; (b) licensing or sale of archive news or video stories that incorporate one or more Assignment Photos; and (c) licensing or sublicensing of one or more Assignment Photos by AP and its subsidiaries and agents outside of the United States . Furthermore, Freelance Photographer acknowledges and understands that he/she shall be entitled to no Royalties for (a) licensing or use of any Assignment Photos in any subscription news services of AP or its subsidiaries or agents, or use by the members and customers of AP or its subsidiaries or agents with a license to access and otherwise use such subscription news services; (b) use of any Assignment Photos in publicity or advertising materials of AP, its subsidiaries and agents, or in books published by or on behalf of AP; (c) licensing of any Assignment Photos by AP or any subsidiary or agent of AP located outside of the United States ; or (d) any use of any photographs or other material submitted by Freelance Photographer to AP prior to the parties entering into this Freelance Photographer Agreement. AP shall provide written notice to Freelancer of any changes to the Royalty (ies) made in AP's discretion to all similarly situated freelancer photographers under a Freelance Photographer Agreement.

(Continued after the Jump)

Comments:
On the surface, this appears to be a thoughtful clause. However, so many potential licensors are stripped from qualifying to owe the photographer a licensing/royalty fee, that I will be surprised if photographers earn much at all. I understand that this is for the US only, and while seemingly limited, I further understand that the ability to pay for foreign licenses will be added at a later date. Further, “the little word that could” here is the word “net”. As in, “net revenue collected.” Ask any Hollywood writer who was given 5% of the movie’s net revenue, how much they’ve ever seen, and the answer will be zero.

Could be changed to:
This clause should take out the word “net”, and there should be a mechanism to compensate photographers who’s work was used in subscription services. More and more, online users are licensing the entire content steam from wire services, using whatever they want.

Section 6.2

6.2. Within sixty (60) days of the end of each calendar quarter, AP shall provide to Freelance Photographer a report of the Royalties from Assignment Photo Licenses to be paid to Freelance Photographer (the "Royalty Report") for the immediately preceding calendar quarter. The Royalty Report shall identify the following for each Assignment Photo License: (i) the party to whom Assignment Photo(s) were licensed on an a la carte basis ; (ii) the download date(s); (iii) the respective license amount(s); (iv) the applicable Royalty; (v) the caption(s); and (vi) the invoice date. The Royalty Report shall be accompanied by the Royalties for the calendar quarter. It is understood that AP may offer Assignment Photo Licenses for Assignment Photos at a bulk rate to a la carte licensees, which may require allocation of revenues across photographic images from various photographs downloaded and/or made available to such a la carte licensees. In the event Assignment Photo(s) are licensed on an a la carte basis with other photographs at a bulk rate, the net revenue received by AP shall be apportioned on an equal pro-rata basis across all photos included in the a la carte bulk rate, for purposes of determining the Royalties for each Assignment Photo.

Comments:
Just as the AP can apportion the amount of bulk licenses here, so too should they use that same (or a similar) mechanism to apportion royalties due as a part of a subscription license.

Section 6.3

6.3. Freelance Photographer shall maintain with AP valid, complete, accurate and current information as required by AP ("Freelance Photographer Payment Information") including without limitation, address information and bank information required for direct deposit, by which AP may remit Royalties to Freelance Photographer, via United States Mail or electronic direct deposit, or such other method of payment in AP's sole discretion, and provide other necessary documentation, including any appropriate tax documents. AP shall not be responsible for payment of Royalty if Freelance Photographer does not maintain or provide upon request of AP such Freelance Photographer Payment Information, as required by AP. AP shall not be responsible for paying any interest on amounts held by AP. Freelance Photographer shall provide AP with written notice of any changes to the required Freelance Photographer Payment Information at the address listed in Section 9 below .

Comments:
Here, they say you have to keep them informed of your location, or bank account information. Fair enough. They also say they’re not responsible for any interest from monies which they held. However, they don’t stipulate how long they might hold monies for you. They should stipulate that the money due you is forfeited after 5 years, or 10, or your death.

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Friday, April 18, 2008

The AP 2008 Contract Analysis - Section 6

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