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| CONTRACTS WATCH Issue 97 (vol. 14, #5): published by The American Society Of Journalists and Authors April 10, 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: * Annual ASJA Writers Conference April 21-22, 2007
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The 2007 ASJA Writers Conference is April 21 - April 22, 2007. For conference details, go to www.ASJAConference.org. Two full days of great information. Last day of registration is April 15, 2007. *******************************
We understand that ideas do not enjoy copyright. We also understand that many publications want to "own" submissions in the sense that they responsible for returning them. But the magazine Mental Floss, at least according to its web site [1], goes one step further: "All submissions (and all ideas, wording, materials and other content, in whole or in part) become the property of Mental Floss, and may be used, modified, distributed, and provided to others by Mental Floss without restriction or payment of any kind. By making a submission, you represent and warrant that you have the right to disclose and to authorize any and all uses and disclosures by Mental Floss of the submission, and you agree that you waive and that you will not claim any rights in or restrictions on the submission (or any use or distribution by Mental Floss) at any time." In other words, they can use not just the ideas but the actual material in the submission. According to the site, "Sure, our submissions process is a little different from that of other magazines, but face it, mental_floss is a different kind of mag." We certainly wouldn't disagree. *******************************
In a blog entry[1], Mediabisto reports that Harper's is putting its entire archive of past articles onto its web site where subscribers have free access. As the entry notes: Like the New Yorker's archival DVD project, Harper's could face criticism from its contributors from Charlotte Brontė to Tom Wolfe whose work has been digitized. Well, perhaps Ms. Brontė, being long dead, won't be criticizing, but you can bet many other writers will, and with good reason. The magazine is using this to help retain readers and sell more subscriptions. Sounds like a self-serving form of marketing to us. The blog entry had a quote from someone at Harper's: "In an ideal world we would have contacted all 40,000 writers living and dead," Harper's VP, public relations Giulia Melucci wrote in an e-mail. "In any case, we are not profiting from the individual works or any of it for that matter. This is a service to our subscribers; we are offering it to them for free. In our experience writers are delighted to have their work available on the Web." It would be interesting to know if they bothered to contact any of them - or at least the ones still holding copyright to their own articles. Are in our experience, too, writers are delighted to have their work available on the Web - when they get paid for doing so. *******************************
A writer told us of an unfortunate situation with an expert collaborator. We won't go into the painful details, but there were some interesting lessons. One was that the expert had stopped communicating and yet the writer was supposed to get the expert's acceptance of the drafts. Virtually any client - corporate, individual, or editorial - will have to accept what you do. The trick is to define what acceptance means. For corporate and individual clients, we suggest some wording to the effect that the client has two weeks (or whatever seems reasonable to you in light of your deadlines) to respond with comments. After that period, the material is officially considered accepted. That doesn't mean you can be inflexible and not work with the client, but should things end up in court as you try to get paid, you'll have an enormous advantage. Often contracts miss definitions - for example, when payment actually occurs or the vague use of "electronic rights" that could mean almost anything or possibly nothing. Miss nailing these down before you sign, and you might find that it takes court time to hammer out agreement later. If there is an odd-sounding term - in the case of this writer, "time is of the essence" - go to a legal dictionary on the Web and find out what it means. In this case, the term means that timely completion is of such great importance that should the affected party miss a deadline, it could be an automatic breach of the contract and give the other party a big legal stick. The writer was fortunate, because it was the expert that was so encumbered. However, the writer didn't know what the phrase meant. And that brings us to a different point: if you're using an agent, don't depend on the agent's own lawyer for contract reviews. In this case, the agency created the collaboration agreement with some loopholes to pass a good sized tractor trailer. You want a lawyer who is paid to look out for your interests, not of the agent. *******************************
We recently saw a contract that Work.com sent a writer. It had the litany of problematic issues: they wanted to own copyright, the warranties were absolute in their nature and not to the writer's knowledge, indemnification was for a breach or an alleged breach of warranties (should someone accuse the writer of doing something wrong, the publisher knows where to send the bill), and there wasn't even a guarantee of a byline. The kicker? They pay $200 at tops for an article - less than burger-flipping wages. *******************************
It's always welcome to see another copyright resource, and Stanford's new online database[1], while not everything that everyone might want, is good to have. Books published from 1923 to 1963 fall into an interesting period in U.S. copyright history because from 1964 on, copyright renewals were automatic under the 1976 change in the copyright laws. Also, the Copyright Office only put into its online database renewals received after 1977. Building on earlier work by Project Gutenberg[2], Stanford has put online the renewal forms, though only for books. Still, someone might find it useful, and it's free. *******************************
According to this story from Canadian site CANOE[1], Carleton University in Ottawa, Canada is trying to educate graduate students about how to protect their intellectual property and to get credit for what they've done: Examples include a student not receiving authorship on written work, or having a professor take credit for their work. "This isn't an indictment of profs at all," said Howlett. "It's just to ensure that students' rights are protected in the case that it does happen." Let's be clear: if a person or entity in power uses the work of someone under its authority without credit or pay, that is an indictment of a system that puts monetary and professional gain ahead of doing what is right. Remember that when you push to control your work, you aren't doing it just for yourself. *******************************
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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