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| Issue 80 (vol. 10, #4): published by The American Society Of Journalists And Authors August 1, 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:
* Getting the word out - and a request
******************************* It's obvious that we produce Contracts Watch because we feel strongly about the subject of contracts. It certainly isn't for the pay, benefits, or even the rampant fame. For some time, we've thought that the basic means of distribution is through email and that readership was largely stable. Sometimes, though, things change and for the better, at least in our view. A number of organizations have taken us at our permissive word and have been redistributing CW, keeping with the express permission to reproduce and distribute each issue, if the entire issue. What is new is that some PR service companies, such as travel industry sites Gotravelnews.com and Mediakitty.com, are also providing CW as a benefit to their visitors. That has brought the total circulation to somewhere between 12,000 and 15,000, we think. We would pop a champagne cork, but are probably giddy enough. The CW staff does have a request. If you don't receive Contracts Watch through direct email subscription, please go to http://www.asja.org/cw/source1.php and let us know how you get Contracts Watch. We would enjoy knowing who else is helping writers with contracts.
******************************* After a number of writers approached us with contracts, we have more insight on the current state of the New York Times. It seems that better contracts are restricted to Op-Ed and the Magazine. The latter has the most reasonable approach - yes, it wants database rights but it won't syndicate or sell reprints. However, the bulk of the Grey Lady offers only grey borders for a freelancer's bank book. It wants all rights, even retroactively. But why grey borders instead of the obituary's traditional black? Because any syndication sales split "net" proceeds (so you don't know what you will really be making) between the Times and the writer. Alas, that does not include database sales or inclusion on the New York Times News Service, because the entire contents of the paper are used. There is another bright spot: some writers are successfully negotiating the retroactive grant of rights out of the agreement, which otherwise grants rights to any and all articles a writer has previously published in the paper. Can you say Tasini? So if circumstances force you to write for the Times proper, be sure to have them strike that offensive clause. We must also admit that because the clause seems phrased to offer permission going forward, we don't know if it covers previous infractions and whether it offers some broad posterior protection for the Times. (We certainly can say Tasini.) Even the International Herald Tribune - once a joint venture between the Times and the Washington Post, but now owned only by the former - has a better policy that calls for exclusive rights for a month and non-exclusive thereafter. No, we don't think that sharing the store with someone who can easily out-market you is wise, especially when that party can sub-license rights, but it would be a vast improvement of depending on the kindness of the Times. And, it turns out that when push comes to shove and the Times has published before it handled contractual issues, that the paper can suddenly become reasonable. One writer had an article published only to have the contract arrive the day after. Then suddenly the author had interest from a magazine to use the piece. We offered what we knew under the circumstances: that the Times generally only would strike the retroactive clause, but that under the circumstances, it couldn't force her to sign, though that might poison the waters for future work. However, the writer, getting the paper to admit that it had no other option, crafted what an editor said was a one time deal - a reasonable contract. Our new advice: start pushing on the negotiation front again. The Times has the mechanisms to track use, and doesn't need copyright on articles any more than any other major publisher does. And register your copyright, so that if you can negotiate a better agreement and your work goes into the rights selling machine, you are legally covered.
******************************* Using the old slang for newspapers has a bittersweet irony. Most journalists have an affection for the business of daily news gathering. Unfortunately, not all papers have a great affection for the writers. We have now seen several contracts from the North Jersey Media Group, which publishes the Bergen Record among others. All the versions have been uniformly terrible, asking for either work made for hire or, should the writer know enough to turn them down, then all rights. Outside of the questions of legal authorship under WMFH, as Contracts Watch discussed a couple of issues back, the effect is the same. Oh, and the company wants writers to indemnify it. Given the reportedly low rates of pay, it might make sense for freelancers to laugh at the idea of contributing to any affiliated publication and writer for more reasonable publications publications.
******************************* Some publishers like the New York Times are notorious. Some, on the other hand, have developed the reputation of having so-called writer-friendly contracts. Meredith is one of them, but there was supposedly one title holding out: Better Homes and Gardens. It now seems that the ugly rumor was wrong. BHG does have a FNASR (first North American serial rights, for those who need a refresher) contract. And, unlike many contracts that are mistakenly called FNASR, this one looks for nothing beyond that first publishing in North America. Consider it another market worth pursuing from a contractual point of view.
******************************* Any young male who has spent time in the boy scouts or cub scouts is probably familiar with Boys' Life, a publication of the Boy Scouts of America. There are topics of interest to developing youth who like the outdoors, and, we assume, all with an eye to the ethical code that scouts emphasize. We're happy to report that the contract for freelance writers seems pretty scout-square. The overall fee includes print rights as well as distribution in Braille and microfilm. Get to the section on electronic use - including CD-ROM and databases - and it seems that the writers collectively get half of everything. The formula is a bit complex, with each article or column counting as a single share of the total pot and the total monies split among all the shares, much like waiters pooling tips. So, if you have two articles, you get two cuts of the money pie instead of one. Although someone with a particularly "hot" article might not see all the money that could come from a close watch on individual demand, the approach makes a good deal more sense in areas like CDs where there is no way to track access to articles. Overall, though, it's a reasonable approach, and we applaud that the BSA is trying to do business equitably.
******************************* A writer came to us with a contract from e-book publisher Whiskey Creek Press. Aside from a number of concerns and low royalty rates (30% on books downloaded from the company site), we noticed that the rights included trade paperback. It specifically mentioned print on demand and that the author could choose to have a paper version or not, but that doesn't matter, because signed as is, the writer would have handed over the trade paperback rights. Once you as the author provide a right for a period of time, you cannot simply take it back. If a deal suddenly came along for traditional publishing and distribution, you'd be out of luck, whether on demand or not. Consider carefully the rights you grant, and how that might affect the future of your work.
******************************* If your group needs help thinking about the fine print, the ASJA Contract Committee has speakers available on the subject of - who would have thought it? - contracts. We can't make any guarantees, because these people donate their time to this cause that they consider worthy, and they all must make a living, but if you'd like someone to speak about contract issues, write us at contracts@asja.org.
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