| CONTRACTS WATCH Issue 91 (vol. 13, #3): published by The American Society Of Journalists and Authors September 15, 2006 Free subscription instructions at the end. Please remember that we are not lawyers and that this is not legal advice, but business advice.
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An E&P article tells of how Karl Zinsmeister took a 2004 profile of him that ran in the Syracuse New Times, changed quotes and text, and then posted it on the web site of the American Enterprise Institute magazine, which he edits. Now we have the new term Zinsmeistered and a concern for all writers: someone taking a work, materially changing it, and then passing it off as the writer's original work. The subject, though, could have been anyone in business, any citizen, or any other person or organization that wanted to co-opt the written word. Certainly it brings about that old suggestion to register your copyrights for a particularly large legal stick with which to bash the infringers. But there's an additional problem for freelance journalists. If you grant a publication the absolute right to edit your copy and the absolute right to resell it to any entity it wishes, then how long will it be before some corporate gnome decides that "tailored news" should be a grand new line of business. And even if the publishers don't go that route, if they can and do sublicense the right to edit, then it could be that the subjects will have legal protection for doing as they wish. Yes, folks, pay enough and you can have all the news that fits ... you. *******************************
When recently looking through the message boards at FreelanceSuccess.com, we came across news of craigslist post that ... well, put us into clinical shock. Yes, indeed: Johnson & Johnson, which topped $50 billion in sales in 2005, was looking for writers for a web site, yet couldn't afford to pay them. We figured that this had to be a prank or the case of a start-up doing under license. But when a couple of the ASJA Contracts Committee took to the web to get the scoop, stat, we found that, indeed, the site mentioned really is owned by Johnson & Johnson. Oh, my. Are things really that bad down in New Jersey, with a red ink hemorrhage? Couldn't the company find enough bandages in the warehouse to stem the flow? Is that why it placed the ad on Craigslist? Or, could it be - could it really be - that management, even with net earnings last year of over $10 billion, is so rapaciously greedy that it wants to start a new web site and have writers subsidize it? Could it be that the company is redefining the term bottom-feeder and looking for anyone desperate enough for credentials that might get roped into giving it away as an approach to its own fiscal health insurance? We'll point out that the company has a credo that says, among other things: "Our suppliers and distributors must have an opportunity to make a fair profit." Oh, well, those are just words, we guess, and a dime a dozen - or not even that. *******************************
We noticed with some bitter amusement an Editor & Publisher article about how many New York Times staff and freelancers are unhappy that their work has enabled the paper to crank out its soon-to-appear "Practical Guide to Practically Everything" from St. Martin's Press. The second paragraph of the E&P story puts it in a nutshell (Or would that be nut graph?): "'I can't imagine there has been a book with this many contributors from the pages of the Times,' said Alex Ward, the paper's editorial director of book development. 'It is safe to say it has the biggest use of material from the paper.' Some contributors, however, wish they were getting paid for their re-cycled material." Pardon us a moment of incredulous we-told-you-so, but what the hell did any of you expect? When you write under a work-made-for-hire contract, you are no longer the owner - the publisher is. Did none of you think that they actually did anything with this material? The NYT sells articles day in and day out - syndicating to other publications, licensing to database companies, and holding out the availability of the archive as a way to entice subscribers. Your collective works are real business. But too many have been so anxious for the clip. "Oh, I don't mind, I couldn't resell the piece anyway, and, anyway, I want to be in the Times," the last part of the sentence accompanied by that lean and hungry look. But when you do business from hunger, you're not going to get your fill. The question isn't whether writers are directly reselling their articles, but whether they want to control their intellectual property and make a profit from its use. Studios do it, mags do it, even unmitigated rags do it. You could too - if you realized that you've been selling your future for an indifferently-paying byline today. *******************************
We heard from a writer who, smartly, has been trying to register her work with the US Copyright Office. Unfortunately, she's received more than one notice that the irradiation process the body uses as part of its mail handling and screening procedures had damaged the pages she had sent in for registration in the first place. Doing some checking on the Office's site (a good one for any professional creative to know and use), we found this reference. (http://www.copyright.gov/mail.html) So be sure to read through and appropriately package your material, unless you want to go into resubmission limbo. *******************************
Of course you want to register your copyrights, as it gives you enormous legal protections. When it comes to book authors, that usually means negotiating with the publisher and having it do the registration for you. But if you're a book author, have you ever seen a certificate of registration? Have you checked the US Copyright Office site (www.copyright.gov) and searched to see if there's a record of your copyright registration? We've been hearing - and seeing - examples of authors who couldn't find their registration in the online database. If you have written a book under a contract that specified copyright to be registered in your name, please do us all a favor, check the database, and drop a line by going to this link and clicking the link (http://www.asja.org/cw/cw.php) at the bottom of the page to send an email to the ASJA Contracts Committee. We're trying to get a sense of just how big a problem this is. *******************************
Business magazines have learned that online is big business - for them. An article from Media Life Magazine points out that business magazines are making serious money off the web - from advertising. Could you imagine that? Does that mean all those promises to pay when the web paid are about to pay off? Somehow, we don't even expect to hear that the check is in the email. *******************************
Many indemnification clauses are triggered by warranty clauses - promises you make to the publisher. We suggest to make warranties only "to the writer's knowledge." The theory is warrant only what you could reasonably know and control. Warranty clauses typically cover a range of conditions - copyright infringement, infringing any third party's rights (including those publicity and privacy), or writing something that would be libelous. Unfortunately, you have to depend on court definitions of what what constitutes infringement or libel or even obscenity. In these days of the Internet, that could literally mean any court anywhere, and not even a lawyer could know all legal systems. But there's a more concrete and easier-to-explain reason: editors sometimes add things without telling the author. What's the case when, as happened in a situation we recently heard about, an editor makes up a quote out of whole cloth? Sound unbelievable? It isn't - it's happened to some of us at Contracts Watch, and in "prestigious" publications. If that quote puts the source in a bad light, you could be talking about a law suit. Or what if someone at the publication adds some "information" that is somehow judged to be an infringement of a company's intellectual property? It's hard to imagine a court would agree to an indemnification predicated on something that writer hadn't written. But why leave the room? It's far cleaner to keep a contractual distance from anything that you can't control. *******************************
We admit we were completely dumbfounded on seeing this contract. It's bad enough, wanting all rights as well as copyright. And it's ridiculous that a kill fee be only 10% of the original fee. But this contract explicitly states that even if it only pays a kill fee, Scripps Networks keeps all these rights. Section 4, Grant of Rights, starts with the following language: "In consideration of full payment of the Fee or Kill Fee, Writer irrevocably grants, transfers, and assigns..." and continues listing everything you hand over. And at the end of Section 6, Kill Fee, you see the following: "Payment of the Kill Fee in lieu of the Fee shall not impact SNI's rights to the Work under this Agreement." The greed, contempt, and arrogance of such language is astounding. What's the matter? Can't the company make enough off the Food Network, HGTV, the DIY network, and its other properties to afford paying writers the full amount when it wants the full rights? We suggest that James B. Clayton, Executive Vice President and CFO, listed as the person at Scripps Networks who signs the contract, work for the next three months at 10% of his usual salary and see how satisfying his job remains - and how patient the mortgage company, the electric company, the telephone company, and others are when told that he's not being paid what he's owed because his employer realized that it didn't have to pay what it morally and ethically owed. In case anyone feels so motivated, the main number for Scripps Networks is 865-694-2700. *******************************
Need a Writer, Editor, or Editorial Project Manager?
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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/contact.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
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