From: jwa@well.com (Jay Allison) Date: Wed, 26 Jun 1996 11:28:38 -0700 (PDT) Subject: NPR/Independent Producer Agreement, Final TO: RADIO Producers Advocacy Group RE: The NPR/Independent Producer Agreement. Final changes were installed after discussions at the Public Radio Conference and incorporated by NPR's attorney, Denise Leary, and the attorney for the Producers Advocacy Group, Neal Friedman. This document is still subject to your individual negotations with NPR, but it is a much better starting place than producers had several months ago. Everyone will live with this agreement for a while and see where the trouble spots are. It will be re-negotiatied by December 31, 1997, as described in the "Side Letter." - Jay Allison 6/27/96 ----------------------------------------- [Date] [Name of Independent Producer] [Company Name, if any] [Street Address #1] [Street Address #2] [City, State, Zip] Re: NPR - Independent Producer Letter Of Agreement Dear _______: This letter expresses NPR's arrangements with you to acquire and distribute material that you will produce for inclusion in NPR's news programs and for other uses by NPR. 01. You agree to produce the material described in Attachment A, and to work with an editor or editors designated by NPR in connection with completing that production. All material you produce under this Agreement will meet the highest journalistic and technical standards and will be subject to editing according to NPR's editorial processes. You agree that NPR may withhold from distribution any material you provide, for a reason or for no reason. 02. NPR agrees to pay you a per minute or daily fee for on-air use and all other uses in all other media for which NPR is granted rights under this Agreement, for pieces completed and accepted by the designated NPR editor, as set forth in Attachment B. You will be paid this fee within 30 days following first broadcast of each piece. If NPR delays broadcast of your work, NPR will process your payment no later than 30 days after acceptance of your work by the NPR editor. NPR cannot make payments to you unless this Agreement has been signed by you and by NPR. 03. NPR will pay for the cost of delivery of your material to its designated office. NPR will not pay any other expenses without the advance approval of the designated NPR editor. 04. You agree to gather, create and prepare your material as an independent contractor. You will receive an on-air credit for each piece that you produce. A credit for your work will be included in all broadcast and non-broadcast uses of your material appropriate to the medium in which it is used. NPR agrees to use reasonable efforts to include underwriting credits in the non-broadcast medium for direct funders of materials you produce under this Agreement, consistent with NPR's Guidelines for National Program Underwriting. 05 News Programming Distribution. (a) You hereby irrevocably grant to NPR a nonexclusive, assignable, world-wide license in perpetuity to broadcast and/or distribute for NPR-authorized broadcast by others, the material which you provide under this Agreement, subject to the condition that, unless noted to the contrary in Attachment A, any NPR or NPR-authorized broadcast of the materials will be as a part of a block of news programming distributed or licensed by NPR in any media, and irrevocably grant NPR such rights prior to any other broadcast or distribution of the material by you or by anyone other than NPR. In the event that a piece is accepted by NPR but not broadcast within ninety (90) days, you will have the right to make other distribution arrangements, prior to NPR's broadcast. NPR agrees not to authorize or license broadcast of your material to the British Broadcasting Company, the Canadian Broadcasting Company, or the Australian Broadcasting Company, such are reserved by you. In addition, NPR acknowledges that you retain the right to adapt and revise material which you provide under this Agreement for broadcast or use in any medium by others so long as such use does not take place before NPR has broadcast or distributed the material, unless NPR has consented to a prior release. All rights not specifically granted to NPR under this Agreement are reserved by you. (b) In the event NPR rebroadcasts all or substantially all of the material provided under this Agreement, NPR agrees to pay you an additional fee, mutually agreed to. NPR shall have the right to excerpt material for obituaries, breaking news events and the like, without payment of additional fees. 06. Ancillary Uses. Subject to the terms of this paragraph, you hereby irrevocably grant to NPR a nonexclusive, assignable, world- wide license in perpetuity to publish, duplicate, reproduce, distribute and adapt your material on-line, on the World Wide Web, on the Internet, in CD -ROM, in all other digital and electronic media now or subsequently created, and in sound recordings, transcripts and foreign distributions, and in compilations that include your materials along with materials produced or created by others ('Ancillary Uses'). NPR agrees that any single compilation of materials published or distributed by NPR shall not be composed entirely or predominantly of your work or your work combined with that of several other independent producers without your express advance written consent. Except to the extent permitted in Paragraph 5(a) above, NPR agrees that you have not granted, and NPR has not received, a license to publish, duplicate, reproduce, distribute and/or adapt your material as a theatrical motion picture or for television (cable, subscription, over-the-air and the like). NPR further agrees that all other rights, in all media now known or hereafter known, which are not specifically granted to NPR are reserved by you. 07. Archival and other Uses. You hereby irrevocably grant NPR a non-exclusive, assignable right in perpetuity to maintain archival copies of your material in any and all media, now or hereafter known. This right includes, without limitation, permission for NPR to include your material in digital archives that will be, or may be searchable by end users. NPR agrees that individuals retrieving materials from such a digital archive will receive the following notice: "This page, and all of its contents, are Copyright c National Public Radio [year] as a compilation. Rights to any individual segments are held by the individual producer(s) credited. All rights are reserved by National Public Radio and the individual producers." 08. Either of us may propose to the other an exclusive publication and/or distribution license for non-broadcast reproduction and sale of the material or adaptations of the material provided under this Agreement, to be associated with NPR's service marks and name. We each agree to respond within thirty (30) days to the other's written proposal. If the response to the proposal is favorable, each of us will begin to bargain in good faith within 14 days of that favorable response. 09. We agree to assist each other in protecting the rights granted under this Agreement and we each agree to execute documents reasonably requested by the other. Payments you receive for the material delivered under this Agreement, as described in Paragraphs 2 and 5 and Attachment B, will be NPR's full payment to you for all uses. 10. Paragraphs 5-9 above will survive the term of this Agreement. 11. (a). You assure NPR that you have full right, title and interest in all elements of the material you provide under this Agreement. If any clearances, releases or licenses are needed for your material or for elements within it, you will obtain them before NPR's broadcast or other distribution of the material, except as otherwise provided herein, or as hereafter agreed to. (b). You represent and warrant that all music contained in your material is either in the public domain; licensed by one of the performing rights societies; or is licensed at the source. (c). NPR warrants that it has the necessary licenses for noncommercial radio broadcast of music and performance of music, and that it will have licenses for its on-line distribution of music, if your materials are so distributed by NPR. 12 (a) You assure NPR that there are no restrictions on the material you submit to NPR, that the material as submitted to NPR is original, except to the extent noted in Attachment A, and that its use by NPR will not violate or infringe on the copyright, trademark, privacy, reputation, creative or other rights of any person or entity. You assure NPR that the materials will comply with the provisions of the Communications Act of 1934, as amended, all applicable rules and regulations of the Federal Communications Commission, and other state and federal laws pertaining to the production and broadcast of programs, and that NPR's distribution of the material does not involve a risk of civil or criminal liability. (b). You agree to indemnify and hold NPR and NPR's licensees harmless from and against any and all claims, damages, liabilities, costs and expenses (including reasonable attorneys fees) which result from any breach by you of these warranties. If litigation is initiated by a third party in connection with material provided under this Agreement, you agree to cooperate fully with NPR to defend against it. (c). NPR agrees that it will only use your materials as authorized by this Agreement. NPR agrees to indemnify and hold you harmless from and against any and all claims, damages, liabilities, costs and expenses (including reasonable attorneys fees) which result from any unauthorized use of your materials by NPR or from any substantive or material modification by NPR of the work submitted by you. 13. Each party retains the right to terminate this Agreement on thirty (30) days' written notice to the other party . The terms of this Agreement will apply to all satisfactory material submitted to NPR by you as of the termination date. In the event of termination by either party, each party shall have all rights and remedies available at law or in equity, but in no event shall NPR be obligated to broadcast, disseminate, or distribute your material, in any media, as a remedy, or under any other circumstance. 14. This Agreement is effective as of the date it is signed by both parties. 15. This Agreement supersedes and replaces all agreements, written or oral between us pertaining to the materials and arrangements which are affected by this Agreement. It is our entire understanding, and may be modified only by a writing signed by both of us. This agreement is to be interpreted under the laws of the United States, and the laws of the District of Columbia without reference to the District's conflict of laws rules, and all work performed under this Agreement will be deemed to have been performed entirely within the District of Columbia. NATIONAL PUBLIC RADIO INDEPENDENT PRODUCER By: _____________________ By: ______________________ Date: _____________________ Date: _____________________ Telephone: _________________ Facsimile: ________________ Social Sec. #: ______________ Letter of Agreement [Date] Attachment A The following material will be provided under this Agreement: [Insert description of material to be provided, including an identification of any non-original materials included.] Letter of Agreement [Date] Attachment B 01. Per-Minute or Daily Rate for initial broadcast use by NPR and non-broadcast uses authorized under this Agreement: _________________ 02. Additional payment for re-broadcast by NPR on the "Weekly Edition" program or broadcast by other programs per use (payable within 30 days of re-broadcast): _________________ **** Side Letter for Independent Producers [Date] [Name of Independent Producer] [Company Name, if any] [Street Address #1] [City, State, Zip] Re: Future Negotiations for On-Line/Internet Royalties Dear _________: You and NPR have discussed the opportunities that might exist for exploitation of materials you provide to NPR by means of distribution using 'new media' such as on-line services and the Internet, including the World Wide Web. In order to allow NPR, in our mutual interest, to explore whether and to what extent distribution through these media is practical and viable in the marketplace, you and NPR agree to establish a grace period (royalty-free) for on-line, Internet, World Wide Web, other digital distribution media, and all other Ancillary, Archival and other uses employed for material you provide to us. This period shall begin on June 1, 1996 and end on December 31, 1997, or the date on which NPR's gross from the distribution of all materials using such media exceed $1,250,000 (Gross Revenue Threshold), whichever event occurs first. Your materials are provided to NPR on a non-exclusive basis so that any revenues you obtain from your own licensing are not shared with NPR. NPR agrees to use reasonable efforts to track revenues from uses of your materials in other media described in the preceding paragraph. As tracking systems are instituted by NPR, NPR agrees to provide you with reports of revenue comparable to those provided to other suppliers of material to NPR's news programs. Reports will be provided every six months, the first to be provided on December 1, 1996. As we both gain knowledge regarding distribution by means of these media, it will be possible to conduct reasonable negotiations regarding royalty payments to you based on actual usage of these media by others. Therefore, in advance of December 31, 1997, or promptly following the date on which the Gross Revenue Threshold is reached, you and NPR agree to negotiate, promptly and in good faith, regarding royalty payments based on access to your materials by means of these media, for materials produced by you after that time. These payments shall also apply to sales of materials provided to NPR during the grace period, for sales occurring after the end of grace period. Through sales by Journal Graphics, NPR intends to track transcript and cassette sales of pieces produced by you. If transcript or cassette sales exceed 100 copies in either medium or combined, NPR agrees to negotiate a royalty arrangement with you for future sales of your work. for NATIONAL PUBLIC RADIO signed: ____________________ Dated the INDEPENDENT PRODUCER [named] signed: ______________ Dated --