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CONTRACTS WATCH
Issue #75 (vol 9, #2):
published by
The American Society Of
Journalists And Authors

July 30, 2002

The American Society of Journalists and Authors encourages reproduction and distribution of this document for the benefit of freelance writers and photographers, and other publishing content creators. Reprint or post as many items as you wish, but please credit ASJA for the information and don't change the content.

ASJA Home Page: http://www.asja.org
Contracts Watch Page: http://www.asja.org/cw/cw.php

Contents:

*Some small changes at Contracts Watch and a photo problem
*Beating the Dallas Morning News at its own game
*Trouble on the guide book front - and some good news
*Yankee thrift is contributor dearth
*Tribune tribulations
*Contract-savvy speakers available

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Those who have followed Contracts Watch might notice a slight change in wording at the top of this issue. ASJA is starting to work with EP, Editorial Photographers, that represents photographers working with magazines, newspapers, and other publications. Writers and photographers can learn a lot from each other when it comes to content creator rights - and publisher wrongs. EP is taking an active stance in reviewing contracts for photographers, much the same way the ASJA Contracts Committee does for writers. Contrary to the beliefs of many writers, those behind the lens are getting squeezed as much as those behind the pen.

An example is the Dallas Morning News. According to what we're hearing, the paper is taking a lesson from the Associated Press - which pays relatively poorly and demands all rights, making photographers ask for permission to even put photos into their own portfolios! - and going downhill from there. Photographers are being expected to pay all their own expenses - film, processing, mileage, and parking, all of which quickly add up - out of paltry fees. Given the cost of operating a business, the photographers are likely literally subsidizing the DMN. Maybe we should make that DAMN.

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One writer found an interesting way to deal with the Dallas Morning News: by selling through a syndicate. By selling travel writing through a "company" instead of directly, this smart journalist has relinquished only limited Web and one-time print rights. No third party sales, no transfer of copyright. This replaces the freelance contract that, according to our correspondent, lets the paper resell a writer's work. This is one of the more creative and effective ways to organize that we've seen in a long time.

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There was a time when guide books gave travel writers a way of making a decent living doing what they loved. Those days are largely long past. Globe Pequot seems to hope that writers are not only naïve, but downright stupid. The company's contract demands copyright on guidebooks, and then expects the author to pay for whatever maps and photography the publisher deems necessary. The author does not have the right to check changes made by editors to the manuscript, demands author indemnification for the company and any third parties the company chooses, and forbids the author from working on a potentially competing book without any end to the non-compete. The publisher holds back 35% of royalties as a reserve against to return. That's far higher than the more usual 20%, which means that authors wait longer to eventually get their income. And with a trifling advance of under $4000 offered to at least one author, there's precious little to tide someone over. Overall, it's a poor contract.

Nevertheless, there are even worse contract provisions. Avalon Travel Publishing, for example, has a clause to cover its financial rear with an author's income. Every book contract has a warranties section: authors must avow a number of things, such as being the real writer of the submitted material, avoiding libel, and respecting the copyright of those whose works they quote. At one time, should a publisher have strongly suspected that an author had not been honest in such assurances - perhaps someone sued for a copyright violation - the general practice was to sort things out in court. Unfortunately, Avalon is an example of a new trend. Should the company suspect the author of doing something that, if true, would be a violation of any of the warranties, it can start immediately withholding royalty payments until there is a final determination, probably by a court, that the author was at fault. If the author is shown blameless, the money is finally paid. Some publishers, though, have been floating even more extreme versions of this clause, in which they advances just on the supposition that the author could have made a mistake.

But one of the most important clauses to check, whatever the contract, is jurisdiction. A publisher can, if authors are not careful, force any legal dispute onto their own home turf, which can mean an expensive remote suit by an aggrieved writer. One Lonely Planet author alleged that the publisher was ignoring his right of first refusal in updating the guidebooks he wrote, work that meant close to six figure income for him. When the author had to resort to arbitration, Lonely Planet tried to beat a hasty retreat from its US offices in California back to home base of Australia, knowing that it would be virtually impossible for the individuals to pursue his rights. Luckily, a good lawyer and reasonable court system kept the proceedings in the US, and the author, after having won that round, has a good prospect of protecting his rights yet again. Even if jurisdiction had been in another state, though, the author could have found it too expensive to insist on what was legally his. Remember, the next time you sign a contract, each word is in it for a reason, and the more you know, the better you can protect yourself.

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There's a new contract for photographers at Yankee that is being tight on the dollar and long on the demand for rights. One contributor's recent negotiations created doubt whether a change in payment approach would yield as much money as has been paid before for similar projects. Call it an economic miracle: deflation in the face of a growing economy. Another interesting tidbit is that photo editors and art directors seem to think that because some photographers insist on their rights, all are wealthy. Perhaps more photographers might educate staff as to the real expenses of running a photo business, and how they have office, equipment, and operational costs just like a magazine, or are the magazine's ad rates being slashed because the publishers are making too much money?

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Papers owned by the Chicago Tribune have been sending new contracts out to contributors. It turns out that there are actually three versions. The first is an offensive all rights contract. Those who demand something better, and whom the papers "value," get a second contract. At first blush it seems like a non-exclusive all rights contract - bad enough. But on closer inspection, it has a waiver of moral rights - so an article no longer has to be identified as the work of a particular writer. In addition, a clause grabs rights for everything a journalist has written for the paper prior to the contract! That means that all work of a writer ever published by the paper now becomes open game for money making. Oh, did we mention without revenue sharing? But then, you expected that. What writers who have been that persistent don't realize, though, is that there is reportedly yet a third contract, far less restrictive, for "star" names. Tell editors working for the chain that you are no star-crossed author, and to forward the only acceptable version of the contract as a starting point for negotiations.

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Does your professional group have questions or concerns about contracts? ASJA's Contracts Committee has knowledgeable members throughout the country willing and able to address your group on contract matters large and small.

Addressing challenges like work-made-for-hire, indemnity clauses, making unfair contract palatable, and negotiating strategies, we can give your members the kind of nitty-gritty, on-the-ground information they need to protect their rights and improve their bottom lines. For information, e-mail us at contracts@asja.org.