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Contents:

* Following up on Reprint Rights
* Reviewing the Agent Relationship
* Navigating the Amazon
* Recycling quotes
* What it Takes to Register
* Lawyer Required
* Contract-savvy speakers available

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Following up on Reprint Rights
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It must be a relief to all involved with the negotiations that there is a settlement to the class action suit against the major database companies. (For details, see http://www.freelancerights.com and register. You may be owed money, in some cases substantial sums, without realizing it.)

But what is the end of a multi-year process is also a potential beginning for many writers, because it's a practical recognition of just how much value there is in the rights that many sign away without consideration. The settlement is $18 million, and had the bulk of writers actually registered the copyright on their work, chances are it would have been far higher.

The reason is that no matter how much some publishers claim that there is no money in these secondary rights, there is. Lots of it. The publishers have known it, and now the editors and writers know it as well. Even if you don't actively market a piece after it first appears, others can do so successfully.

Now is a good time to consider the worth of your work, whether it appears in print, in databases, in syndication, in reprints, or in any other form. We're not suggesting that you must keep all the rights yourself -- far from it. Often it's a publisher that has the connections and business infrastructure to make that extra money. When that is the case, offer to split the gross (not the net, as there are too many ways of making it look as though it is close to zero).

Many have been happy with non-exclusive rights transfers for no additional payment, but that puts you, the copyright holder, in competition with the publisher. If someone else is going to make money on your work, make sure you get a cut.

The other important fact coming out of the litigation is that no matter how much they argue to the contrary, most publishers can and often do have ways of tracking what pieces are sold and for how much. That means they can relatively easily generate reports and cut checks, whether individually to writers or to a payment mechanism like The Authors Registry, Inc. (www.authorsregistry.org). Ignorance is no excuse, particularly when it's due to hiding ones eyes behind one's hand.

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Reviewing the Agent Relationship
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Last fall we suggested that many book authors would be well off instructing their publishers to cut two checks: one for the agent and one for the writer. That way there could be no problems waiting or an agent to forward the author's share. Most agents are reputable and above board, and do cut checks quickly. However, there are some who do not -- whether because of some nefarious intent or just operational inefficiencies.

An agent actually wrote us and took us to task for our leanings. In short, the agent's arguments were as follows: 1) the structure of the author-agent relationship is long standing, 2) agents would not be able to recover such costs as postage and photocopying in as efficient a manner, 3) the agent could not track and verify the author's income if the amounts were split, 4) publishers would not change existing contracts without agent approval, and 5) the author-agent contract may specify that monies are paid to the agent and that the agent forwards them.

We thought about the arguments and realized that most of this boils down to the agent's convenience. Saying that an industry has always undertaken business in one way is not a compelling argument to continue that practice. Agents can recover costs -- by billing the writer and demanding payment. Many agents delay asking for reimbursement, requiring it only in the case of a sale. They could certainly send an invoice along with the advance check. Agents who require expenses in any case could simply bill incrementally -- providing copies of expense receipts, just as any business might do for a client. If the agent is getting 15 percent of the money owed the author, then calculating the total royalties is a matter of using a calculator to divide the money it receives by .15 to determine the total amount.

It's the convenience that is the issue -- the certain ability to get paid. But if you compare the cost of borrowing $150 for six months versus borrowing $15,000 for two weeks, it becomes clear that the author loses more. The agent always could ask for an increased percentage for fronting the money, or give the author the option of paying all along. There are simple solutions.

But splitting the payment has additional advantages. Again, relatively few agents will not send on what they owe, but we've heard a number of cases where an agent died or retired and suddenly the author couldn't get paid. This splitting at the time of signing checks would at least ensure that the author would continue to receive payment without delay. And what happens if the agency goes into bankruptcy?

In all, we still think it's an approach that is worth considering. One point, though, where the agent was completely right was in the author-agent agreement. To sever the payments, the author must have the legal right to do so, and that right doesn't exist if the author has agreed that all money goes to the agent. It might be worth the time to review your contracts with agents and publishers; even if you cannot change things now, it is intelligent to consider the possibilities going forward.

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Navigating the Amazon
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Continuing the discussion on secondary and subsidiary rights, we were surprised the other day to find that Amazon.com is selling copies of articles. Given Amazon's hunger for revenue and exploration of presenting content online, even in terms of searchable books, this shouldn't be surprising.

But in some cases, articles are appearing even though the writers never assigned these additional rights to anyone. Chances are that Amazon made the deal with some consolidator, but that doesn't help the writer who receives none of the revenue.

ASJA and the Author's Guild are looking into this situation. We'd ask that writers go to Amazon and search under their names. If you find that your work is up there and you know that you never licensed such uses, we'd ask you to send an email to amazonwatch@asja.org. We're trying to get a scope of the problem to find an effective and equitable approach to resolving it. Please note if you actually registered the copyright on any of the pieces before February.

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Recycling quotes
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Sometimes we wonder whether we spend too much time thinking about copyright issues. Recently, some of us got into a discussion of whether a writer owns the copyright on quotes in a piece or whether it belongs to the person quoted. We've even heard opposing opinions on the part of publishing lawyers, which really made our heads spin.

So we went to the source: the US Copyright Office (www.copyright.gov). Although they don't answer questions on legal issues, they will offer insight into copyright issues and manage to follow up to email questions within five days. (We received our answer almost 24 hours to the minute later.) In this case, they say that the words belong to the interview subject. While incorporating some quotes in an article would fall into the realm of fair use, you cannot blithely assume that you can use extended sections at well. Asking permission does wonders.

The answer also left us realizing that this causes complications in contracts that ask for transfer of rights and restrictions on use of anything in the article. If a quote is involved, you are promising something you have no control over. Another reason to carefully read contracts and to be wary of what you promise on paper.

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What it Takes to Register
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At this point, our stance on registering should be obvious: all writers should do it. But while the paperwork isn't terribly onerous to complete, there is the need to pull together those clips, make multiple copies, and assemble the stack of paper. A colleague asked if it was possible to send the clips in on CDs or DVDs. So, for example, could you scan in all the articles, copy the files to a CD, make two copies of the disk, and mail both in? According to the answer from the US Copyright Office, the answer is yes, with one caveat: if there were ever a question on copyright and the Copyright Office had to check, if the DVD or CD were no longer readable, the entire copyright registration could be tossed out. Given that CDs and DVDs have an expected lifetime of 25 years or so, you might think that paper would ultimately be wiser, since it probably lasts longer. At the same time, if you find that you aren't registering now, and if this new approach would push you over the edge, then do it. Better the prospect of all the protection the law offers your copyright than the certainty of none.

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Lawyer Required
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As far as being certain goes, contracts can be tricky issues, and getting help is always wise. But you have to consider the quality of help you get. We've seen a number of writers who insist on vetting their own contracts -- sometimes with help from such organizations as ASJA or the NWU. That might be necessary for magazine work, where even the more lucrative assignments could see their revenue eaten up by legal fees. But for those doing a book, foregoing legal advice from a competent attorney with extensive publishing experience for the admittedly inexpensive word of an informed layperson is just asking for trouble.

Note the "publishing" modifier. A general practitioner does not have the experience or practical knowledge to adequately address the extensive rights, licensing, and other issues that appear in book contracts. This is an area where getting off cheaply can cost you dearly, particularly when some problem appears and you are left paying the legal bills to extricate yourself.

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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 three requirements to review a contract. First, you must name the publisher, as it helps us aid others in the future. Second, it must be a commercial publisher and not a vanity publishing house that makes its money off you. Third, 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