\ \ \ \ \ \ \
ASJA CONTRACTS WATCH CW961015 Issued October 15, 1996
[The American Society of Journalists and Authors encourages reproduction and distribution of this document for the benefit of freelance writers. Reprint or post as many items as you wish, but please credit ASJA for the information and don't change the content.]
In August 1995, THE NEW YORK TIMES said that freelance writers would have to give up their copyright and all other rights to be published in the newspaper. The harsh edict, accompanying a new "work-made-for-hire" contract, provoked unprecedented slings and arrows directed at the Times. Several major writers' groups and hundreds of individuals, including some of the nation's best known bylines, denounced the Times for bullying writers. Many flatly stopped considering the Times a market for their work.
Fourteen months later, how is the reviled contract doing? At Travel, Arts & Leisure, the Magazine, the Book Review, Living and Op Ed, somewhat less onerous contracts either are the first offer or are available on demand. At other sections, like Business and Real Estate, whose editors apparently have less sway with management, the Times still tries to force the notorious contract of '95. But Contracts Watch has heard from regulars who continue to ignore the demand and are still writing for the paper with no formal agreement at all.
For many writers, the "less onerous" contracts aren't acceptable either, because while they don't take all, they typically give the Times 100 percent of lucrative database income forever and allow the New York Times News Service to offer a work to its 650 clients without a penny extra going to the writer. As one business writer put it, "They want writers sophisticated enough to do a complicated economics story but unsophisticated enough to sign away all their rights."
LADIES' HOME JOURNAL continues to send all-rights contracts to see how many writers will take the bait. The magazine's "other contract" is labeled "Exclusive First North American Serial Rights" but tosses in all-media rights and promotional rights as well. Editors accept cross-outs on both and addition of the word "print" in FNASR, leaving a simple, acceptable contract.
SCIENCE is promising to improve. In a recent letter to regular contributors, the magazine's top editor says: "With the likelihood that your work for the print magazine may now yield us further revenues that we can track precisely to their source, we not only plan to share such revenues with you, but our Business Manager is busily revising the contracts you have been signing to fulfill a pledge to you. We promised that as we got deeper into the electronic age, we would continue to improve our contracts according to industry standards."
MicroTimes devotes two pages in its September 16 issue to "Authors Rights: On Getting Paid in the Age of Digital Reproduction." The bulk of the piece tells how the AUTHORS REGISTRY helps publishers share revenues from electronic republishing with freelancers. Author Anna Couey explains: "Although publishing on the Internet is a relatively new and economically ambiguous phenomenon, electronic redistribution of published articles is not--proprietary online databases, CD-ROM databases and commercial online services, such as America Online, provide direct revenue streams to publishers for their articles...." When publishers complained about the hassles of sharing that stream, she says, writers' groups formed the Registry to do most of the work for them. The $150,000 in first royalties the Registry recently mailed to several hundred authors is "only the tip of the iceberg."
The Micro Times article is available on the World Wide Web at http://www.microtimes.com/155/authorsrights.html
A federal appeals court has told MICROSOFT to stop eating its cake and having it too. By a two-to-one vote in a case brought by eight current and past freelancers, the Ninth Circuit Court of Appeals, in San Francisco, ordered the software giant to pay employee benefits to hundreds of workers it had been classifying as independent contractors. The majority opinion criticized large corporations that use temps and freelancers "as a means of avoiding payment of employee benefits, and thereby increasing their profits." Microsoft said it will appeal.
To freelance writers, the trick is nothing new. Some major newspapers have been reported under IRS investigation for using such maneuvers. And many newspaper and magazine publishers try to have it both ways with freelance writers: For purposes of taxes and benefits, treat them like independent contractors; for purposes of rights, treat them like employees by taking all rights to their work. (See New York Times item above.)
In a new, related contract trend, some publishers come dangerously close to looking into freelancers' bedrooms. Simon & Schuster's boilerplate says the author may not work on another book until the one covered by the contract is done. A Conde Nast columnist agreement would let the editor decide if the freelancer may do a book--on any subject--while under contract to the magazine. These publishers try to manage not just the results of contracted work but how it's performed, a privilege ordinarily found only in the employer-employee relationship. Savvy writers draw a neat line through such clauses.
The U.S. Senate bill that would have merged the Copyright Office with the Patent and Trademark Office died as the 104th Congress closed shop. Authors' voices were loudest among the opponents of the bill, who included publishers, librarians and others concerned that in a new intellectual property superagency copyright would get the short end of the stick.
The Periodical Writers Association of Canada reports that CANADIAN LIVING is asking writers for a year's electronic rights to previously published articles, offering 5 percent of the original fee. Meantime, the magazine's parent, TELEMEDIA, is still considering how to handle e-rights payments in new contracts. PWAC says it has heard of writers talking the CL offer up to 15 percent. Still, the group recommends saying no in anticipation of a company-wide policy to come.
In Europe, unlike in the US, staff writers typically retain some rights in their work. Thus, according to a report from the London Freelance Branch of the National Union of Journalists (UK), the Belgian journalists' union is suing newspaper owners over electronic re-use of members' work. The action stems from the launching of an online database service by a coalition of newspaper publishers.
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. Thanks to all.
To receive each edition automatically (and at no charge) by e-mail, send the following e-mail message:
To: ASJA-MANAGER[_at_]SILVERQUICK.COM
Subject: CONTRACTS WATCH
Complete Text: JOIN ASJACW-LIST
Inquiries and information from all are welcome.
Contracts Committee, ASJA
1501 Broadway, New York, NY 10036
tel 212-997-0947
fax 212-768-7414
e-mail 75227.1650[_at_]compuserve.com
Web page http://www.asja.org/
Received on Tue Oct 15 1996 - 17:18:27 GMT
This archive was generated by hypermail 2.2.0 : Mon Mar 26 2007 - 00:35:22 GMT