Free subscription instructions at the end. Please remember that we are not lawyers and that this is not legal advice, but business advice.

Contents:

* Following up on publishers
* And following up on yourself
* Keeping agents from following up on you
* Avoiding following up for payment
* Welcoming publishers who follow up
* Contract-savvy speakers available

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Following up on publishers
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There are publishers who promise a cut of the proceeds from additional uses of an article. It's well intentioned, but there is a problem: knowing of the additional uses and ensuring that payment comes about. Look at AARP The Magazine -- under the old contract, writers were due a percentage of the original article fee should the piece be reused on the web. But writers generally had to look for the use and invoice for it, because no one was apparently tracking the contractual obligation. (We've heard that the new contract is far grabbier for rights, and we would advise negotiating that out or, as another option, asking for more money.) We've heard of this with other magazines as well, where writers were sometimes owed significant sums, yet the payments never came, because no one was designated to track the use.

Negotiating as good an agreement as possible for each article is an excellent idea. Unfortunately, the writer's work does not end there. Freelance writing is a business; it's important to pay attention to what happens after the contract is signed, the article is delivered, and the check is finally sent. If money is due, then ask for it. Check to see if additional uses appear anywhere. Register your copyright within three months of publication (it's not that hard -- see how at http://www.asja.org/pubtips/copyrite.php) to get the most legal protection possible. And if you find that a publication is not living up to its end of the bargain, address the problem quickly and efficiently. Would you be indifferent if someone took your car out for a drive without your permission?

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And following up on yourself
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We were recently startled by another type of follow-up that writers often lack. The editor-in-chief of a relatively new publication was talking about the problems of getting organized and setting writers expectations during the first few issues, so everyone knew when to expect to be paid. But then she mentioned a problem she had: writers who didn't invoice. She would ask multiple times for an invoice because she knew checks were about to be cut, and yet some writers were largely unresponsive. And even when the invoices finally did arrive, they did so without the social security number accounting needed to process payment.

For many writers, business details seem particularly slippery. But you would think that this might be one area where follow-through was a pleasure. Why go through all the trouble of submitting queries and writing articles if you aren't going to send the invoice so you can get paid? A good solution we've seen is to use an accounting program that can create a PDF invoice. When you answer editor's questions, attach the invoice to that email to finish this important last step.

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Keeping agents from following up on you
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We've seen an ugly development coming from a few agents. Yes, there are contracts between writers and agents, and that is sensible. However, some agencies are apparently not satisfied with the deals they make and are asking publishers to insert into book contracts on their behalf language that binds the writers to the agents for the life of copyright. We agree that by making the sale to the publisher, the agent should be entitled to the continuing revenue stream -- from that publisher. And book contracts often stipulate that royalties will be paid to the agent, who is then responsible for passing on the writer's portion.

But copyright potentially extends far beyond the author-publisher arrangement. Should the latter decide to let the title go out of print, the former can always seek another publishing house. Now what if the author has become disenchanted with the agent, or has just found that their styles differed, and has since found another representative? The clause in the original publishing contract could conceivably join them at the hip, forcing the author to keep paying royalties, even though the first agent had nothing to do with the second sale of the book. The lesson is to keep the agreement with the agent totally separate from the agreement with the publisher. In fact, should you find an agency trying to slip additional contractual restrictions into your contract with the publisher, you might think of slipping off in the near future and finding one that is more inclined to be direct.

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Avoiding following up for payment
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While on the subject of books, we heard one writer discuss a problem with an agent who had decided to retire from the business, selling his client list and taking a position at a magazine. And yet the agent didn't sell the agency, so remained the agent of record for the book, and the recipient of the payments from the publisher. But this former agent was now busy -- often too much so to get to sending checks to this author, and, we presume, the other writers as well. Then someone made a very sensible suggestion -- go to the publisher and negotiate a change in the existing contract to split the payments into two pieces: the 15% for the agent, and the 85% for the writer. That way, the writer would not have to wait.

The idea was so compellingly simple that it merited even more consideration.

Often book authors complain about an agent taking overly long to forward monies. This approach eliminates having to depend on someone else's alacrity; agents get their cut about the same time as writers receive theirs. Any existing contract can be modified with the agreement of all involved parties. In the case of a book contract, that means the author and the publisher, and not the agent, who generally does not sign. Just because a writer didn't think of this before doesn't mean that he or she cannot make good use of it now. Book publishers do this sort of split all the time for co-authors, and agents have no grounds for complaint since writers cannot similarly hold up payment. All it all, it seems like a good modification to request.

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Welcoming publishers who follow up
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One thing we've noticed with some pleasure is the growing number of publishers who are trying to attract writers with better contracts. Mobile Travel Guides still uses work made for hire contracts, but only when the write-ups are based solely on the publisher's own research; we think the arrangement is a reasonable use of the approach.

Otherwise, writers are seeing WMFH head out the window and are free to use their work so long as it's not in a directly competing publication. This is one of the most significant and intelligent movements we've seen in the travel publishing industry in years. Publishers like this show that it is possible to be in the guide book business without expecting writers to subsidize the publishing by selling their intellectual property for a pittance. Our prediction? Such publishers will win the market in the long run, because they will get first choice of writing talent.

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Contract-savvy speakers available
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The ASJA Contract Committee has speakers available on the subject of contracts. Because we are all volunteers, there is no guarantee that we can satisfy each request, but we do try. So if you'd like someone to come speak to your group, let us know.

Got a question or a contract?

Fax questions or contracts to 415-532-1324, including your email address for a response. To send an email, go to http://www.asja.org/cw/cw.php and use our Web form. (Sorry, but the email was getting clogged with spam.) We do have two requirements to review a contract. First, you must name the publisher, as it helps us aid others in the future. Second, you must read through the contract yourself and explain your concerns. We'll look through the whole document anyway, but things go better if you are really involved in the process.

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.

Contracts Committee

ASJA
1501 Broadway, Suite 302
New York, NY 10036
tel 212-997-0947
Fax contracts to: 415-532-1324
Email us through our web form: http://www.asja.org/cw/cw.php

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