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| CONTRACTS WATCH Issue 93 (vol. 14, #1): published by The American Society Of Journalists and Authors January 15, 2007 Free subscription instructions at the end. Please remember that we are not lawyers and that this is not legal advice, but business advice. Contents: * Black List for BlackBook?
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We saw this article (http://www.nypost.com/seven/10292006/gossip/pagesix/pagesix.htm) in the New York Post's Page Six. Unfortunately, although seeing this type of press on the press is rare, freelancers getting stiffed or made to wait unreasonable amounts of time for money is all too common. We'd suggest that if a publication can't or won't pay the people that make its content possible that perhaps the most fitting adornment would be a black border, because either that company can't afford to be in business or morally and ethically shouldn't be. *******************************
For better or worse, for richer stock prices or poorer, we have regard for Readers Digest as a publication that has over decades relentlessly built a massive readership. But when a writer was confused by some of the contract language and typed in a copy to email, we were taken aback. Among the various demands for rights was the following: "We shall be the copyright owner of the exclusive periodical rights purchased herein." What threw us was what seems, to our eyes, an error so fundamental as to be disturbing. Copyright is a property right that includes many other rights bundled with it. But even if you've delivered all the potential rights up on a platter to a rapacious publisher, unless you indicate otherwise in writing, you still own the copyright. So far as we have been able to tell over years of looking at contract questions, there is no such thing as being the copyright owner of a group of the rights. A suspicious person might think that the RD lawyers were trying to pull a fast one, sneaking through a transfer of copyright, but even that doesn't make sense as they restrict the wording to the periodical rights. Not all lawyers are made equal. If wrong, we'd welcome a correction from an authority. But we suspect the writer's confusion was more a reflection of the confusion, or poor proof reading, of the lawyers who drafted the contract. Why bring this up? Because when there is poorly drafted language in a contract, if you ever have a dispute with the publisher, you and the publisher both could find yourselves spending good money to persuade a judge to correct an error. Our advice is to show the publisher the problem and point out that getting contracts reviewed by outside experienced publishing lawyers can be an inexpensive way to avoid an expensive round of court-facilitated fact checking. *******************************
We heard from another writer who said that a magazine claimed that ASJA had "no problems" with its contract. Either someone was mishearing, someone was unclear, or someone was ... let's say misdirecting the conversation. There are times that we will review a contract at a publisher's request, offering our observations and suggestions. The publisher is obviously under no obligation to listen, and we rarely see the final document after our initial comments. Even if we do see the changes, though, we never offer a blanket approval of a contract. There's no way to know whether that version is the one that will actually find its way to writers, or whether terms, even if agreeable, will survive future revisions. If you think a publishing firm is telling you that its contract has ASJA approval, ask again. Did the representative claim approval, or did it mention that the ASJA Contracts Committee had simply reviewed the contract? If the publisher makes any claim that remotely sounds like an endorsement - even if saying that we had no major problems with the document - be wary in your dealings and please let us know immediately. If a publisher has submitted a contract for review, we're happy to compare what you just received with what we saw and our comments to the publisher to see whether anything has changed. We'd also like to know if someone is using us without our permission as a negotiating tool. *******************************
Writers, designers, and photographers often face requests (or even demands) for spec work in which you do the project, submit it, and only then learn if it will be used and you will be paid. It's a ridiculous concept, and it seems that some designers have created a web site - www.no-spec.com - to post warnings of high-profile spec projects and to exhort others to resist the trend. We applaud their efforts. *******************************
HarperCollins announced that it's taking an equity stake in LibreDigital. If you haven't heard of the latter, it develops systems to "store, control, and display your digitized content." (See http://www.libredigital.com/warehouse/ for more info.) The News Corp.-owned book publisher apparently has an interest in getting books online and influencing how book publishers do digital content. If you're an authors, you had also best take interest because this is going to affect you. Have you checked your contract lately? Chances are that you've given your publisher some degree of electronic rights. If you have, then this stirs up many questions. What happens if publishers decide to push more for Internet sales? What will they actually sell? How much will they charge? What percentage will go to a company like NewsStand, which owns (now most of) LibreDigital? If HarperCollins is eventually getting profit from there, will they cut sweetheart deals to pay a premium for the service because they know the money still goes back into their pockets, even though that amount won't be part of royalty calculations? And exactly how much do you make off electronic distribution? The publishing world is changing, and now is the time to carefully negotiate what you'll allow companies to do with your intellectual property. *******************************
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. *******************************
Get Contracts Watch as it happens with an RSS reader. Put "http://www.asja.org/cw/cw.xml" into your RSS reader. For the blog, go to http://www.ContractsWatch.com. *******************************
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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