Lawyer criticises Bauer Media freelance contracts

A contract introduced for freelance photographers and writers by a magazine publisher has drawn a lawyer's criticism over its fairness.

As reported by NBR’s print edition last week, German media empire Bauer Media has introduced contracts for its freelancers, who previously worked under handshake agreements.

Whether the contracts have been accepted by most Bauer freelancers is disputed and it has caused a headache for the company.

However, Bauer Media NZ chief executive Paul Dykzeul says it is a storm in a tea cup and the “vast majority” of contributors have signed the agreement. (See the Bauer Media contract attached below)

The Advertising and Illustrators Photographers Association (AIPA), which is not an industry union, enlisted the help of Clendons principal James Carnie to dissect the contract.

In a red ink written analysis, Mr Carnie says the contract is vague and largely favours Bauer over the contributor.

In particular, he says a clause which states a contributor must provide Bauer with a lifetime financial indemnity in the event of legal action arising from their work is “broad and punitive.”

He says this does not limit the contributor’s potential liability and the contributor could be put into a position where they have to pay Bauer for any costs even when they may be beyond their control.

Mr Carnie says it is “unusual” for a contributor to be unable to restrict how their work is used and conflicts with AIPA terms and conditions.

He says Bauer has the rights to be able to use the work freely and could even re-sell the work to third parties without further compensation to the contributor.

AIPA head Aaron Key says it is simply a way of Bauer underpaying photographers and photographers should instead dictate their own terms to Bauer.

But Mr Dykzeul says contributors aren’t being forced to sign the dotted line.

“If [the photographers] don’t want to work under those conditions, that’s fine, they’re entitled to do what they want to do. If they don’t accept it, then fine, don’t work for us.”

Writers' defamation concerns
The financial indemnity clause has raised concerns for where liability lies in defamation cases. Specifically, some Bauer employees have raised concerns over whether they would have to compensate Bauer if the company was sued even though it owns the material.

But Bauer’s lawyer, Bell Gully senior associate Tania Goatley, says the financial indemnity only kicks in if a defamation case did occur and the chances of this are extremely low.

“The sort of conduct that would cause the contributor to breach the contract is highly within the contributor’s control.

“The key risks Bauer faces are things like a contributor plagiarising a piece of work and Bauer has no real ability to verify that. That’s solely in the contributor’s knowledge and ability to control that.”

Furthermore, she says few defamation cases make it to court and, if they do make it that far, the publisher would be backing the contributor.

“Bauer is also always going to be the first plaintiff because it has the deepest pockets.”

She says the contract is not ambiguously worded and is not intended to pull the wool over anyone’s eyes.

“I suspect a little bit of the angst over it is human nature where you’ve been operating without a formal contract and when you get given one you assume you only have to sign it because it’s bad.”

RAW DATA: 

Bauer Media contract with cover letter (PDF here)

Clendons analysis of Bauer contract (PDF here)

cgibson@nbr.co.nz