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| Issue 95 (vol. 14, #3): published by The American Society Of Journalists and Authors March 9, 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: * 36th Annual ASJA Writers Conference
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The 2007 ASJA Writers Conference is April 21 - April 22, 2007. For conference details, go to www.ASJAConference.org. If you happen to be an agent or editor looking for writers, consider attending our Personal Pitch session on our members-only day. Find details at http://www.asja.org/ppitch. *******************************
If you have any interest in copyright - and any writer does - then you should immediately head to the Copyright Navigator (http://navigator.carolon.net/) by Lionel S. Sobel, a professor at the Southwestern University School of Law and editor of the Entertainment Law Reporter. It offers a step by step interactive exploration of basic relationships of ideas and concepts in U.S. copyright law, even if you're on a slow Internet connection. *******************************
Many publishers have said for some time that online revenues are insignificant compared to print. But what few have admitted to writers, photographers, and illustrators presented with contracts is that they've been investing because that's where the business will be. They weren't expecting to make money right away, and now their patience is being rewarded. This blog entry (http://colincrawford.typepad.com/idg/2007/02/the_transformat.html) by a senior person at technology publisher IDG (think Computerworld and PCWorld) shows how important online revenue can be - 1/3 of the company's total now, and an expected half by 2009. Think of that the next time you sign away online rights and tell yourself that they aren't really important. *******************************
A group representing a number of Belgian newspapers had sued Google for including bits of articles as well as photos and links of articles. (http://www.theregister.co.uk/2007/02/13/google_copiepresse/) It's the second time the case has gone to court and the second time Google has lost. What does this mean for writers? It's unclear, but let's take a step back and consider what it means for publications. Media companies have been concerned about people going to such sites as Google and Yahoo that aggregate content, including news stories, and present them for ad-supported profit without paying for the development of that content. Given that the EU has been pushing for greater uniformity of copyright laws in all its member states, this could mean that other companies might challenge the search engine giant, keeping Google from running that part of its new service. But consider that copyright has an international aspect. What if companies in other parts of the world decide to take their copyright battles to the EU through European subsidiaries? What if some can find ways of using international copyright conventions to pursue Gogol's activities on a more intentional basis? There's no way of knowing the answers, but the fact that media companies can ask the questions must boost their financial morale. And here's where the writers come in. If Google wants content badly enough, it might have to license. It could be that Google News, Yahoo News, and similar services could dwarf what Lexis-Nexis represents as a business opportunity. So, have you looked to see whether you've authorized publishers to license third parties to use your content? It would be a wise thing to consider going forward. *******************************
We've been saying for years that contracts can come back to bit you. According to this BBC news story (http://news.bbc.co.uk/1/hi/northern_ireland/6343535.stm), the owner of Goodfellas, a western Belfast restaurant, sued the Irish Times for a bad review. The owner just won a £25,000 (over US$43,000) and court costs. Think such things don't happen in the US? Read this article (http://www.findarticles.com/p/articles/mi_qa3862/is_200412/ai_n9472862) from D Magazine. If you fall into the position of hated reviewer and you've signed a contract with a warranty that you won't libel and an indemnification clause that includes alleged breaches, you could find yourself eating in for a long time as you pay off the publication’s legal expenses. *******************************
In a previous Contracts Watch item (and, folks, check the blog, http://www.asja.org/cw/cw.php, because all these items appear there before compilation into a newsletter), we said that Braille transcriptions wouldn't be considered fair use under the U.S. copyright statutes. A couple of people noticed a problem, one of whom is self-described long-time reader Lloyd Jassin, who happens to be a practicing publishing attorney (http://www.copylaw.com/). He points out that under certain circumstances, reproduction for persons with physical disabilities is allowed under the Copyright Act. Here's the language: "Notwithstanding the provisions of section 106, it is not an infringement of copyright for an authorized entity to reproduce or to distribute copies or phonorecords of a previously published, nondramatic literary work if such copies or phonorecords are reproduced or distributed in specialized formats exclusively for use by blind or other persons with disabilities." Notice, however, the important caveats. The transcription must be in a "specialized format," of which Braille is certainly an example. The audience must be someone with a physical disability that forbids the use of the original. So far it fits. But the problem with that site offering unauthorized translations of travel guide books is that only an "authorized entity" can do such work. According to the Copyright Statute, "‘authorized entity’ means a nonprofit organization or a governmental agency that has a primary mission to provide specialized services relating to training, education, or adaptive reading or information access needs of blind or other persons with disabilities". The site in question only mentions the owner, who we suspect is well intentioned but who doesn't seem to fit the definition of authorized entity. Therefore, his activities are still a violation of U.S. copyright law. However, as he says he was born in the U.S. but lives in Asia, we also think that taking action would be difficult for most publishers. *******************************
This Advertising Age article (http://adage.com/mediaworks/article?article_id=114856) describes how Hearst is trying to keep the flames of profitability burning no matter where readers go - by providing content to cell phones. Now's the time to pull out any of your publishing contracts to look for that phrase "in any or all media." That's why it's there - so publishers can take advantage of new opportunities. In some cases there may be no other option, because if you don't go where the readers do, you run the risk of not having a business, which means no business for freelance journalists. But it also means that articles become separated from the idea of a monthly issue and, possibly, sold on a per-download basis. When you sign contracts, don't assume that any wording is filler. It's all in there for a reason, and if you don't start understanding the business reasoning of the magazines, you risk being run over by a panicked corporate behemoth running after that source of money the way dinosaurs likely once chased after one of the remaining pools of water. *******************************
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 ASJA
ASJA Home Page: http://www.asja.org
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