ASJA Contracts Watch 960

ASJA CONTRACTS WATCH CW960412 Issued April 12, 1996

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ATLANTIC MONTHLY has settled a two-and-a-half-year-old federal lawsuit brought by a writer after the magazine sublicensed his article to an electronic database without consent. The complaint against Atlantic by Rutgers professor H. Bruce Franklin was part of a suit filed in 1993 with the support of the National Writers Union. The action pitted 11 writers against four publishers and two database producers. Five of the six defendants--the NEW YORK TIMES, NEWSDAY, TIME INC. (for SPORTS ILLUSTRATED), LEXIS-NEXIS and UMI--mounted a joint defense, while Atlantic fought alone...until it threw in the towel. The others so far are holding to the position that they were within their rights. No one's talking about how much Atlantic paid--the settlement agreement gags both sides--but the publisher pledged to negotiate with freelancers for e-rights in the future. The Wall Street Journal reported the development, but oddly enough, the story has been missing so far from the files of the Times and other major media.

ATLANTIC had seemed to be undercutting its own defense in December 1994, after computer users noted that many articles weren't to be seen in its America Online edition. As reported in ASJA Contracts Watch of January 10, 1995, the online staff explained innocently: "Unfortunately, we do not have the electronic rights to articles published before November 1993." Another possible factor in Atlantic's change of heart: the February announcement that HARPER'S would pay off contributors for past database use of their work and share future royalties through the AUTHORS REGISTRY, giving Harper's a writer-friendlier air.

Meantime, the WASHINGTON POST has joined the list of publishers who have settled with an individual freelancer without benefit of litigation. A writer accused the Post of illicitly putting a Weekend section article online. In fairly short order, the Post pulled the piece and paid $500. A suggested confidentiality clause, which would have required silence on the matter, was rejected by the writer.

And K-III COMMUNICATIONS has begun to pay restitution to writers whose articles it sublicensed to online and CD-ROM databases. Late last month, NEW YORK contributors were sent checks for $55 per article, partial payment for what's owed. For a few of the prolific, the take is already in the thousands.

What's happening at GRUNER + JAHR? Contracts from G + J (publisher of such major titles as McCALL's, FAMILY CIRCLE, PARENTS, CHILD and FITNESS) call for three years of free e-rights, but many strong-willed writers, insisting they won't turn over the rights free for even an hour, have managed to have the provision dropped. Now, the company is reported ready to hold, at last, a long-awaited meeting between legal and editorial. Contributors are anxiously waiting to learn who prevails.

If G + J editors lose the battle to do fair business by paying for e-rights, their writers have options:

+ Writers for FAMILY CIRCLE and McCALL'S can turn instead to
WOMAN'S DAY, which pays for articles it uses on AOL.

+ Writers for PARENTS and CHILD can think about PARENTING,
which pays for what it puts on AOL and its Time Warner Web site.

+ Writers for FITNESS can submit queries to HEALTH and
AMERICAN HEALTH, both of which pay for e-rights.

In fact, one writer who was given a rough time by McCALL'S, which has begun to try a harder line with some freelancers, recently declined an offer that came with a free-e-rights string firmly attached. The writer went instead to WOMAN'S DAY, where he ended up with a contract calling for one and a half times the fee plus the magazine's usual option of AOL use for $100.

Writers continue to lob disdain on the NEW YORK TIMES. Critic Jacques Barzun, novelist Jane Smiley and former Times food writer Mimi Sheraton are among the latest to sign onto the campaign mounted by freelancers' organizations after last summer's announcement of an all-rights policy by the newspaper. The list of writers booing the Times, now grown to nearly 600, was recently forwarded to Times editors and managers with a release headed "New York Times Backs Down, but Not Far Enough." Several sections of the paper, the message explains, either don't even offer the contract Times management once insisted was mandatory or backtrack when a writer rejects it. These include the Magazine, Book Review, Op Ed, Travel, Arts & Leisure and Living. The anti-Times memo was issued by ASJA, the AUTHORS GUILD, the NATIONAL ASSOCIATION OF SCIENCE WRITERS, the NATIONAL WRITERS UNION and WASHINGTON INDEPENDENT WRITERS.

A controversial 2-to-1 ruling by a federal appeals court panel allowing photocopying of books and articles for university coursepacks without permission or royalty has been tossed out. The U.S. Court of Appeals for the Sixth Circuit this week sent the case back for a rehearing "en banc" (before the entire court) following a petition by three book publishers who had sued a Michigan copy shop. The AUTHORS GUILD, ASJA, TEXT AND ACADEMIC AUTHORS ASSOCIATION and the AUTHORS REGISTRY jointly supported the publishers in an "amicus" brief, arguing that the court was off-base in finding that authors prefer wide dissemination of their works to compensation. Payment, the authors' groups said, does matter, and copying as much as 30 percent of a book does not constitute "fair use." Meantime, in the court's backyard, at the copy shop that produces coursepacks for Western Michigan University, it was business as usual even before the reversal. "We're still going through the same procedure of checking copyrights," a Copy Desk manager told the Western Herald, the WMU student newspaper. "We don't think the decision will stand."

The LOS ANGELES TIMES has launched a World Wide Web site that promises to include, by the end of this month, articles back to 1990. Users will pay $1.50 per story. The Times is offering advertisers promotional pages and links to their own sites, with prices starting near $2,000 a month and ranging to $6,000 for a spot on the Times home page. Those who've done freelance pieces for the paper may want to look for theirs in May, especially if they never licensed electronic rights: http://www.latimes.com.

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Many ASJA members and others send a steady stream of contracts, information and scuttlebutt so that these ASJA Contracts Watch dispatches can be as informative as possible. To thank all contributors individually would be impossible. You know who you are. So do we.

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The American Society of Journalists and Authors (ASJA) is the national organization of leading freelance writers. Inquiries from all are welcome: Contracts Committee, ASJA, 1501 Broadway, New York, NY 10036, telephone 212 997 0947, fax 212 768 7414, e-mail 75227.1650[_at_]compuserve.com. ASJA Home Page may be found at http://www.eskimo.com/~brucem/asja.htm

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