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| Issue #76 (vol 9, #3): published by The American Society Of Journalists And Authors September 1, 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. Thanks to Editorial Photographers (EP -- www.editorialphoto.com) for periodic information on photographers' contract issues. Free subscription instructions at the end. ASJA Home Page: http://www.asja.org Contracts Watch Page: http://www.asja.org/cw/cw.php Contents: * Laboring under false assumptions * Making contracts work for writers and publications * Prescription for a bad business relationship * No day off for problems at the Mouse * More on Chicago Tribune publications * A writer finds respite on the agent front * Contract-savvy speakers available ************************ We (hopefully) learn something new every day, and writers might only hope that New York Times editors might be learning more about their own contracts. According to many stories that have crossed the CW desk, writers have been told time and again that the Times doesn't do contract changes. If you want to write for the Gray Lady, you must forfeit the all too often short green and hand over all rights. Too hard to track individual payments has become an industry mantra. So readers might excuse our surprise when a colleague, who had written an op ed piece for the Gotham Gargantuan, received a contract significantly different from those seen by most writers. Although not a great contract by any means - sending pieces over the New York Times News Service and Op-Ed Syndicate Service and into databases for no additional remuneration does kill much of the potential reprint market - it makes an interesting statement. Pieces sold into syndication deliver 50% of the net receipts (warning - the company's definition of costs can radically affect the net) to the writer. A task considered oh so difficult is now shown to be something possible. We are happy to know that the major issue preventing the paper from sharing revenues - the difficulties of tracking such use - is now a non-issue. If you consider working for the Times, you might ask your editor for the more reasonable op ed contract. That the secret is out may make management uncomfortable, but struggle is good for the soul, as publishers effectively have been telling writers for years. ************************* The Times is big enough to track and follow up on uses, but many smaller publications have difficulty doing so. Technology Review, long known as a writer-friendly publisher, has recently given up on trying to track uses and gone with a single 10% additional payment for reuse in upcoming international editions, syndication, and reprints that are below $5000 before expenses. Unfair? Maybe yes, maybe no, especially since the magazine pays premium rates for copy. But the situation does raise the question of how writers view contracts. Many take a litmus test approach to contracts - and we must confess that CW has been known to do this at times. However, ultimately a contract is a business arrangement viewed in the light of business goals and considerations. Would a writer make more money through separate fees? Or does a large enough upfront payment make a smarter business decision. In the case of TR, the answer could be yes. For many publications, no is the response. But in any case, it's clear that writers must use reason when it comes to contract negotiations. Could it make sense to sell all rights to an article? Depends on what you are ultimately paid for it. If the amount is greater than or more than what you might expect to see through reselling it to other outlets, then we'd argue that it is. Contracts are ultimately business arrangements, and being smart about your own business will only improve your negotiations. Another lesson is to remember what you have coming to you. The changes at Technology Review came about when the publication realized that it had been receiving income from article, but had not sent along the portion owed to the writers. To the management's credit, it devoted a senior editor for significant time to clear up the books and is now sending out checks to all the writers. But how often have writers agreed to terms and then not followed up to see if more money was due? Perhaps a useful addition to contracts would be a variation on a clause used in book publishing, under which an author can request for an audit and the publication pays if there is a sufficient discrepency. ************************* The rational approach shows the latest business move by Internet site WebMD to be clearly a financially unhealthy one for writers. The organization wants to reprint articles that originally appeared on CBS/Healthwatch. All well and good so far. But the publishers would like permission from writers for no additional compensation. When asked about money, the company replies that "unfortunately" it is not paying, but stresses the visibility available with 17 million unique visitors a month. Those who told use about the request have decided to keep control of their work and not give it away. Interestingly enough, the company reports that outside of restructuring and other unusual costs, income after usual expenses increased by 74% to $12.7 million in April, May, and June compared to the same period last year. It's nice to know that things are going well for the company. It's also instructive to note that the company provides content to other Internet companies, such as AOL, MSN, and News Corp. We are sure that they are providing the material out of the goodness of their corporate hearts, too, and asking for nothing but visibility. *********************** It seems that lawyers at Disney, owner of publications like Discover, are asking for little, too - just to be left alone. A writer informs us that he had always modified an indemnification clause with the phrase, "to the best of the writer's knowledge," a modification that has become standard at many magazines and book publishers. It seems, though, that no one had noticed this until his last article, when suddenly editors refused to sign the modified document, saying that their lawyers wouldn't let them alter anything at all. Such instances seem to transcend mere corporate avarice and reach the lofty heights of arrogance and spite. We must then ask: is the company run by a man or by a Mouse? ******************** Arrogance takes many forms. In the last CW, we mentioned that the Chicago Tribune properties seem to have three versions of a contract, with the third the only one that seemed promising. Now a source of ours who has written for the Orlando Sentinel says that she finally received that rare version - and that it still grabbed all rights for previously run articles as well as "a host of other problems." We can only presume that it's the spirit of Al Capone confusing a contract with a protection racket. ******************** Sometimes, though, things go right for writers, which puts a smile on the faces of those here at CW. A writer was in negotiations with a literary agent and sent the contract to the ASJA Contracts Committee. After taking a look, we raised our eyebrows and made a large number of suggestions. The writer's collaborator dropped the negotiation ball, so she took over and achieved virtually every change she requested. Remember that no one will attend to your interests with your zeal, and that if you don't ask, you don't get. |
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