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| CONTRACTS WATCH Issue 92 (vol. 13, #4): published by The American Society Of Journalists and Authors November 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. Contents: * Cut to the Quick
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We seem to be on a roll of jaw-dropping incidents. First there was Scripps Howard wanting to keep rights to work even if they paid kill fees only (though we've heard since our post the other week they raised that kill fee from 10% to 50% - a good start, but, folks, drop keeping rights for something you kill). Now we've seen a contract from Impulse Media Communications that says "Any revenue generated from subsequent outside publication or licensing of the work will be shared on a 60/40 split, with 60 percent of the reprint or licensing revenue being awarded to the author and 40 percent going to IMC." Notice the contract isn't speaking about the uses Impulse Media makes of the article - they actually expect the writer to keep paying a percentage to the company, even though all it did was pay for an initial set of rights. And then the publisher wants a credit as first publisher in all subsequent uses. Oh, we forgot - the credit demand is to come in the name of the magazine: name of the magazine: Generosity. No, we don't make this stuff up. Who could? *******************************
Those who contribute to wire services and newspapers are used to hearing that the companies "need" extensive rights to be able to compete on the Web. After all, they're giving away all that content. Maybe not. According to this story (http://www.mercurynews.com/mld/mercurynews/news/15157800.htm) by Elise Ackerman in the Mercury News, a number of big media organizations are actually getting paid on a click-through basis by Google and Yahoo for allowing them to make use of the material. As the story reports: "'The people who own the content did a lot of work to generate the content,' Google Chief Executive Eric Schmidt said in an interview with the Mercury News. `We want them to get the majority of the revenue from advertising.'" Yup - they paid someone a pittance, insisted that they keep extensive (if not all) rights, and made the deal. Guess highway robbery is a lot of work if you view it the right way. *******************************
"Oh, there's nothing else that I could do with this article, so selling all rights won't hurt me," we've often heard writers say. How about if that article gets turned into a television series or a movie? Still feel that selling all rights for an unremarkable amount of money was worth it? This article (http://www.observer.com/20060821/20060821_Jonathan_Liu_media_offtherecord.asp) from the New York Observer tells how the New York Times hired an agency to represent its content for film and television rights. Apparently an independent producer is just about ready to option a story from a staffer. But that story could just as easily have been from a freelancer - and under its WMFH contract, the paper wouldn't even have to give the author credit, let alone a penny. As we keep saying, there's a reason that publishers want these rights - because they expect to make money from them. And if they're making money, so should you. *******************************
This article (http://www.poynter.org/content/content_view.asp?id=106490) shows an example of a fundamental problem in copyright and contracts: many publications and editors simply don't understand the legal requirements and ramifications of dealing with copyrighted material. What we found most disturbing, if correctly reported, were two assumptions: that fair use meant that a publication could use any photo it wanted to, even if its work was not about the photo, but about the subject of the photo, and that a photo, or any other copyrighted work, could fall into "public domain" if the work was just stolen often and broadly enough. Clearly a lot of people in the editorial world could use a refresher course in media law and copyright. But we think the Golden Rule works well. If someone did it to you, would you find that acceptable? Somehow we doubt that any publisher would think that it had lost an interest in or control of material because its rights were widely ignored. The second part is, if you would object to having it done to you, maybe you should think twice about doing it to someone else. *******************************
We recently saw the new "master agreement" from Meredith's book division. It's quite a little document. It seems that the magazine mentality of “we should own it all” is permeating to the book side, as this looks a lot like the ones we’ve seen from there with a work made for hire provision. (Ironically, books don't fall under the types of works that Congress said could be considered WMFH.) But the problems for writers don't stop there. Under copyright law, 35 years after a grant of rights, an author or the author's estate can revoke them, presumably to get a better deal than the one locked into place decades ago, avoiding what could become enforced servitude. So the contract requires the writer to offer rights to Meredith first at whatever terms he or she is seeking. If the author for whatever reason just didn't like dealing with Meredith, too bad. Add holding Meredith harmless for any breach of the contract; no guarantee of having authorial credit; and yet Meredith having the right to use the Author's name, likeness, and bio to publicize any publication or Web site with the work (Can you say put the entire book on the Internet with perhaps no royalties?); and this seems a very bad deal for writers. There's a reason these are "master" agreements. They make writers slaves to unreasonable business terms. We say find another publisher - and some freedom. *******************************
There is a long tradition of teachers owning the intellectual property of their teaching. But we guess that in a new media world, some figure a new approach is necessary. Mediabistro has often tried to portray itself as a community for the media. But it's obviously primarily a profit-making venture when you see a copy of its teaching contract. First, the fees are a bit laughable - $300 for teaching upwards of 30 people a three hour class, for example. There are escalators increasing pay to $500 if enrollment hits 45, but there's explicitly no upward cap on the number of students. Then they want to make everything work made for hire - owning the "preparation of any and all materials by you in connection with the Seminar." Course notes? Theirs. Research? Theirs. Exercises? Theirs. Examples? Theirs. Or, as the contract says, "you retain no rights to use, publish or exploit the Seminar materials except on behalf of mediabistro." In addition, they can publish the transcript or even make a video of the class available. Who gets the money for those? They do. Oh, and for a year after, you can't teach anything to people in the media, develop course materials or curricula for people in the media, or compete with the company in anything it currently does or might do, whether or not you were involved in those areas at all. Our advice is to take a short lesson in how not to get involved in teaching, and look instead at the many other opportunities that are around. *******************************
Need a Writer, Editor, or Editorial Project Manager? ASJA Freelance Writer Search, a service of the American Society of Journalists and Authors, connects those who need writers with more than 1,200 writers who have met exacting standards of professional achievement. Use Freelance Writer Search to locate writers for a wide range of editorial projects including books, articles, newsletters, corporate communications, ghostwriting, web copy, scriptwriting, speechwriting, and much more. Listings are free. For more information, visit http://www.freelancewritersearch.com. *******************************
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. *******************************
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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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