Writer's Resources

Electronic rights
in newspaper and magazine contracts

If you write for periodicals, you're probably being offered contracts that ask for the right to use your work in electronic forms--distributed via online computer services, CD-ROM and other media--in addition to standard print uses. If you have not yet seen such contracts, you will. This is not the wave of the future. It is now! At ASJA, we are asked more and more often what should be in a good electronic rights clause and what to watch out for. Thus, this paper.

Periodical publishers try to acquire new-media licenses in several ways. Some--generally low-end publishers--may claim all rights, or assign an article as a "work made for hire," which is all rights and then some. Others ask for electronic rights in addition to ordinary print rights.

ASJA recommends not accepting an all-rights or work-made-for-hire agreements for magazine and newspaper work, except in very special cases. Remember, as an independent professional writer, you do not "sell" an article. You license specific uses of it. A license to cover electronic rights, like licenses for any extra rights, should be based on this principle:

All uses beyond first print publication must be separately licensed and separately compensated.

Electronic uses are not like ordinary print uses. If your article is in a printed magazine, it's part of a publication typically sold on newsstands for a week or a month. Then it's gone, and you may exercise your right to do other things with it. Articles published or republished electronically are very different:

• They're available for individual purchase; the reader/viewer does not have to buy the whole issue.
• They're available indefinitely, not just while the publication is on the newsstand.
• In the case of online articles, money changes hands for each sale. The reader/viewer pays a fee per article; the computer service, the publisher and, often, a middleman all take a piece of the fee.
  

The question isn't whether you will ever resell your piece. The question is: Should others resell your work for their profit alone? Writers shouldn't let publishers and others profit perpetually from their property while they--the creators of that property--get nothing.

The preferred compensation for electronic rights is a share in the income derived from such use. Splitting revenue is routine with other secondary rights, such as anthology, reprint and syndication. The split may range from 85-15 (when the publisher is merely acting as your agent) to 50-50 (when you and the publisher have equal interests). Such arrangements require specific tracking of article use in electronic forms and the advanced bookkeeping necessary for author-by-author division of income.

Overall, our industry isn't quite tooled up for this. But a system is coming fast. As a temporary measure, a flat fee for electronic licenses is acceptable, so long as it is a separate fee attributed to the electronic license.

It is not acceptable to take a higher overall fee to surrender electronic rights with print rights.

 Why not? Because even if extra dollars are paid to induce you to sign, a deal like that establishes that electronic rights are included with other rights for freeþexactly the wrong precedent. And watch out for this: On a revenue-share basis, it may be OK to grant a broad license that covers many different types of electronic republication. But when a flat fee is proposed, the electronic license should require separate payment for each deal made by the publisher. It's best then to limit the duration of the license (for example, $100 for the right to use an article on America Online for one year) or establish payments to be made for any renewals of the license.

If there are problems reaching agreement on an electronic license, an option may be written to allow terms to be negotiated if and when the publisher wishes to use or sublicense the material electronically. Or, failing that, the electronic provision often may be deleted and the publisher must agree to keep your article out of any electronic compilations of its material. Don't accept the line, "We must have every article cleared for online use"; arrangements for electronic product routinely allow publishers to delete articles as required.

Standard practices in our industry are being established now. Do not think you can sit this one out while waiting for others to take a stand and protect your interests.

In the area of electronic rights, there is no "sitting it out."