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| Issue 82 (vol. 10, #6): published by The American Society Of Journalists And Authors October 30, 2003 Free subscription instructions at the end. Contents:
* Contract horror
******************************* Welcome to the Halloween issue of Contracts Watch. Given the directions that so many publishers are taking with contracts, negotiations now seems a topic perfect for this time of year. An essential element of terror is the expectation that something dread and unknown will happen. So it is not surprising that many writers remain terrified of dealing with contracts since there are days that every new document from a publisher seems to contain new expressions of the same old unreasonable demands. The answer is to meet the problem head-on and avoid the fright with anticipation and reason. When you start understanding the dynamics, you can predict where the body - or the axe - will fall. Writers should pull together all they have learned about contracts and anticipate what a publisher might well do. That way, there is time to create alternative strategies without feeling that overwhelming demand of approaching deadlines and emptying bank accounts. Once you have outlined the possibilities, you can consider your options and meet requests with reasoned responses: "Oh, you want all rights? Why? What are you trying to achieve? What specifically do you need to do?" As what the publisher wants becomes more concrete and less amorphous, it is possible to craft language that addresses the real needs, and not to provide ownership of an article as a "convenient" way to license a definite number of rights. After all, would you hand someone your checkbook in order to lend $5? And when a movie, or a contract, becomes intolerable we can always vote with our feet. The producers and publishers will quickly realize that their business models must change.
******************************* The ASJA Contracts Committee has been saddened to see a string of problematic contracts from a number of writers that have one thing in common: Meredith. This publisher once was a relatively bright spot in the industry, for the most part keeping First North American Serial Rights contracts available at least for writers who knew enough to ask for them. But things have been changing for the worse. Some correspondents have told us of receiving paperwork not from their editors but some denizen of the legal department who is sending "master" agreements. The language in the cover letter tells all: "You may be aware of the Copyright Law that went into effect January 1, 1978, [that] requires certain action in order that the work we receive from freelance contributors continues to meet Meredith's requirements to have full rights to the material we publish." Let us take a moment. Meredith has not in the past had a general requirement for full rights to all material they publish. This new document is one to be avoided, because it trumps any other contract you might get for an article assignment. So if the contract from one of the Meredith publications mentions only First North American Serial Rights, the master agreement would add in everything else. Not only has this gone out to writers receiving an assignment, but in at least one case, someone who had written for a title before Meredith purchased it and who had an existing agreement for reuse was told that a new contract was mandatory. An editor called with the good news that the piece was to be reprinted and more money was due, but that a "reprint agreement" would be needed for a check to be cut. The so-called reprint agreement was actually the new master agreement. We informed the writer that by purchasing the magazine, Meredith had inherited the existing contracts, so the writer could tell the magazine that the issue was already addressed and that no secondary document was necessary. The writer did this and then received another contract, worse than the previous one. So we suggested that the writer contact the company's lawyers and point out that the existing contract was the controlling one, and not the new piece of paper sent by a controlling corporation. The lawyers called the managing editor, and - amazingly enough - the check was sent. Another writer - working for the same publication, oddly enough - also was sent a master agreement. Not wanting to give away all rights, and dreading the phone call to the editor, the writer nevertheless undertook the negotiations with some help. The results? A First North American Serial Rights contract that was fairly reasonable, needing only the addition of "to the author's knowledge" in the warranties section, and even inserting that important wording was not a problem; the magazine readily agreed. So, if you write for Meredith and have been sent one of these onerous agreements, stand your ground and insist on something better. You might just get what you ask for.
******************************* Just as defeat can elicit a self-fulfilling prophesy, so can success. We go back to the example of the second writer with the successful contracts negotiations with Meredith. This person then was energized and went on to go through, with our help, a contract from Nick Jr. Family Magazine - a publication associated with the kid's cable network and published, we think, by Viacom - needing extensive changes. The editor's answer? "We're pretty amenable to contract changes." Good for them, and good for the writer. It took a bit more back and forth, but the writer obtained the necessary changes. With two successes under the belt, it was time for a third. The same writer's latest assignment from Family Circle came in the form of a contract that had just added an unpleasant little clause with big ramifications: "All rights granted to Publisher herein shall be deemed to be applicable to any and all prior agreements between Author and Publisher to the extent not granted with respect to the works described therein. Author shall be compensated for such rights in accordance with the provisions of this Agreement." This meant three things. First, any additional rights the magazine managed to get were immediately and permanently retroactive. If that wasn't bad enough, the contract was with the publisher - Gruner & Jahr - and not the magazine title. That means that the additional rights would also apply to any article previously written for any title owned by G&J. And finally, it set compensation for all these rights to the current levels, so if a use of a previous article would have paid more before, it no longer did. The writer said that it all sounded like the teacher on the Peanuts television specials: "Wah, wah, wah, wah-wah-wah." After we explained what the wording seemed to mean, the writer wasted no time wading into negotiations yet again. The legal department backed down and another negotiation victory was in hand. You don't have to be a legal expert, a canny business expert, or a confrontation shark to get better contracts. What you need is the willingness to understand what is really being said, the insistence on asking for what you want, and the readiness to walk away from noxious deals.
******************************* We have heard from a few people who have written for Nurses World. The publication decided to change editorial directions and sent out notes to its contributors trying to single-handedly void contracts for existing pieces. However, contract law does not allow any party - including a publisher - to unilaterally change the terms of a contract once it is signed. We were pleased to pass that information on to one writer who was able to recover the full money for one piece already turned in and kill fees for two articles under contract but as yet unwritten. However, in our travels on writers' online forums, we noticed that other writers had less luck with obtaining their money. In at least one case, the writer had a contract that should have offered protection, with money owed even if a piece were not published, but the writer had added "to be paid upon acceptance," thinking this would speed payment. Instead, it opened a door for the managing editor to declare that the article was not accepted, and that payment would not be forthcoming. There is a danger in adding language in contracts - or in using model language found on the Internet or that someone else suggests. On more than one occasion we've seen writers insist on bits of legalese because they "sounded good," but that actually created some potential danger. For example, one writer included "speed is of the essence," which actually means that being even a day late would allow the publisher to cancel the contract, and possibly even open the writer to potential damages. The lesson here is to get help when making additions, and preferably have a lawyer look at what you want to do. Yes, writers are often low on funds, but being penny-wise and pound-foolish never helped anyone.
******************************* A writer contacted us, saying that SalonSENSE Magazine, a trade magazine for African-American beauty and grooming businesses, had reprinted without permission an article that had previously run in another magazine. The writer learned this on receiving an email, from an associate editor of the publication, announcing the fact, and offering to send a copy of the magazine. The writer wanted a check, instead. According to her, the article appeared to have been taken off the web site of a major small business publication. Without permission of the copyright holder, in this case the writer, such an action is blatantly illegal. On contacting people from the magazine, we were told that the publication "gets many submissions" and had to investigate the situation. Some months have passed since that point. In this case, the writer had registered copyright - an important step to both have standing to take legal action and to bring into effect the massive hammer of statutory damages, punitive damages, and reimbursement of legal fees. In a recent phone conversation, the writer said that weekly phone calls have done no good, so we suggested a strongly worded demand letter. We also suggest to any business writers to check if SalonSENSE has somehow found itself in possession of your work, too.
******************************* The ASJA Contract Committee has speakers available on the subject of, wait for it . contracts. We can't make any guarantees - 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 come speak to your group, write us.
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.
Contracts Committee Distribution of Contracts Watch is sponsored by www.Silverquick.net.
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