 |
|
• HOME • CONTACT ASJA • FOR THE MEDIA • MEMBERS-ONLY SECTION • PASSWORD HELP
ABOUT ASJA
FIND AMERICA'S
FOR WRITERS
ASJA ACTIVITIES |
| Issue #77 (vol 10, #1): published by The American Society Of Journalists And Authors April 4, 2003
Got a question or a contract? 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 and the Graphic Artists Guild (GAG - http: //www.gag.org/contracts/contracts.html) for information about illustrators and contracts.
ASJA Home Page: http://www.asja.org Contents:
* Some happy news
************************ It has been a while since we've sent out a Contracts Watch. Part of that is due to the pressures of real life on a severely limited number of people, and another part owes to the additional extra curricular activities in which we indulge: helping to advise writers about contracts for newspaper, magazine, and book work, with the occasional agent's agreement tossed in. Over the last few months, we've found ourselves taking up the new activity of advising publishers. Yes, more than one editor and publishing house has been asking for help in drafting documents that writers might not find so offensive. That prompts a Snoopy-like happy dance here in Contracts Central and a few observations. Writers assume that they cannot have any positive impact on the state of the publishing business. To that we utter a resolute hogwash. Publication houses ranging from small start-up to newsweekly and conglomerate types have said that they feel the need to court writers. Although an editor is unlikely to let on during a negotiation - after all, both sides in business talks, including writers, are presumably trying to get as much favor for themselves as possible - the publication absolutely needs writers. The same can be said for photographers and illustrators. Most publications are trying to run lean, have little choice, actually, given the state of the market, and cannot afford to staff fully enough to provide everything they need. Certainly inexperienced people will accept ridiculous demands of rights, impoverishing rates of pay, and other unreasonable terms and conditions, either because they do not know better or because they think this is the only way to break into the business. But editorial people are crushed for time and staff, remember, which is why they need the extra help in the first place. They cannot take chances that material will be half completed and late, to boot. That means they need experience that can deliver professional results. But such people are becoming business-savvy and refusing to hand over their first born to a Madison Avenue Rumplestilskin. However, differing from the legend, the riddle is not to guess the name, but the game. And that game is to hold out for better. Yes, it can make you temporarily uncomfortable in the short term, and you might even have to relent at times to keep the wolf from the door. Yet if you continue to push, to insist on business relationships that offer reasonable value for value offered, then in the long run, things will improve. They have to: no publication can, in the long run, afford to print thinly veiled excrement. Already publications are asking what they need to do, how they can appease writers, what is necessary to attract talent. And this will only continue. If you find yourself feeling downtrodden and powerless, remember that major corporations have been feeling the heat and things are changing. It may be slow, it may be almost imperceptible at times, but it is happening. To celebrate that, here are some success stories rather than a somebody done somebody wrong song.
************************ Computer magazines have been some of the past leaders in trying to get writers to agree to work for hire. We were pleasantly surprised when a writer let us know that a hard stance with Linux World, one of IDG's publications, had a wonderful effect. The publication moved back from demanding all rights to a contract that would provide print rights and limited web rights, with any other use to be negotiated with the author. There was no corporate mandate to hold fast to an all or nothing stance, and the writer made some additional money for additional work. Kudos to the writer for objecting to what we might call "indented servitude," and the same to the publication for acting in a reasonable manner.
************************ We don't know if it's the glow of the servers, but another writer had another pleasant negotiation with yet another computer-related magazine. A CMP trade publication had asked for all rights for an article. The writer countered with First North American Serial and permission to show the article on the magazine's Web site. The publishers shot back with a request for First World Serial Rights (the magazine appears in other countries), and non-exclusive electronic rights. Countering, the writer offered the sought serial rights and amended the electronic rights so that they would be non-transferable. In other words, no licensing the material to anyone else. Reportedly, the negotiations were always pleasant, with an eye to a solution that would work for everyone, and the deal was struck. Congratulations again - maybe more writers will now want to take up programming.
************************ A writer had a year-long contract with a high profile web site, which, because of financial difficulty, decided to cast loose a number of people a month shy of the contract terminations, including this person who asked for our advice. We said that if you fulfill your end of a contract, the publisher must do likewise. In this case, the writer's work had never been turned down and had appeared virtually word-for-word. After a first refusal to meet its obligations and then a few days of hemming and hawing, the accounting department was requested to send on the owed balance of payment. The moral of the story is not to let some company bamboozle you. Mental turn about is fair play. Simply ask yourself what they would do if you reneged on your end, and let that answer inform your own action.
************************ Another case was Health Magazine, which had issued to a writer a contract that did not provide for a kill fee, but instead had wording that clearly implied that a story not run would result in a full payment anyway. Well, as happens with such publications, there was some change of the editorial winds and the magazine decided not to use the story the writer had completed and turned in. No problem with the quality – another commission was already in the works. But then the publication announced that it had made a mistake, that a kill fee clause should have been inserted, and that it would only pay one-third of the original fee, as what had become its current custom. The writer, not being shaken, just stirred, suggested that the publication review the contract with its lawyers, who must have pointed out that courts tend to frown upon unilateral changes in contracts after their signing. The writer received the full payment and even kept the next assignment. After all, there was a contract.
************************ Finally, a trade publication writer in the beverage industry received a contract from a long-standing client, which demanded a signature before paying thousands of dollars for work already run. The writer continued to insist on one-time print rights and no weighty indemnification. And in the end, the publisher found the writer's work more important than blanket demands, agreeing to FNAS rights, except for occasional cases of running some of the material on the Web site for additional money.
It tickles us to see people successfully negotiating contracts. The more reasoned interaction we all have with publishers, the better everyone, including the publishers, will be. |
ASJAA • A 1501 Broadway, Suite 302, New York, NY 10036, USA A • A (212) 997-0947