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ASJA CONTRACTS WATCH 44 (vol 4, #5) CW970402 April 2, 1997
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News of MICROSOFT, PARENTING, NEW YORK TIMES, ASSOCIATED PRESS, more...
MICROSOFT, whose founder epitomizes entrepreneurship, doesn't make it easy for freelancers to follow that lead and profit from their own creations.
Contracts Watch has obtained an internal memo just sent from Microsoft headquarters to local editors at SIDEWALK, its about-to-be-launched series of city Websites (Seattle, Minneapolis-St. Paul, San Diego and others). It seems the company has six contracts with different rights arrangements, ranging from work made for hire to somewhat limited rights. A page on the contracts' rights clauses explains each and tells editors how to negotiate with freelancers:
"Pick the right contract simple rule: Start with #1 All Rights and work up to #6 Time and/or Product Limited... Use #1 for majority of Sidewalk contributors, especially writers and illustrators, and always for content that gives Sidewalk a strategic advantage... Use #2 if contributor wants print rights to their work and we have no interest in exclusive print rights... Use #4 if contributor insists that MS use content only in specific product(s), if there is little likelihood that MS will use content in other MS products and if content has little syndication value...."
Even the best of the deals gives Microsoft too big an ownership stake in a work, letting the company use and profit from it forever with no further compensation to the writer. The contracts differ chiefly in how much latitude the writer has to enjoy the pleasure of competing against Mr. Gates in marketing. Astute writer-entrepreneurs will decline the opportunity.
Freelancers about to write for any Microsoft "product"--also including SLATE, the travel site MUNGO PARK, MICROSOFT INVESTOR, MICROSOFT MONEY and FINANCIAL LIFE--are invited to ask ASJA for further details.
Although some writers are squawking and walking over PARENTING's heavy-handed new freelancer agreement, the magazine's top editor, Janet Chan, tells Contracts Watch she considers it "one of the most enlightened around." But only weeks after its unveiling, she reports that the magazine has begun drafting a revision.
Meantime, her editors say flatly that current terms offered aren't negotiable, which makes Parenting less attractive than competitors like CHILD, PARENTS and SESAME STREET PARENTS, which do negotiate. But Chan says otherwise. "It is not true," she carefully puts it, "that nothing in the contract is negotiable." To pick the most ravenous part, what of the "multimedia rights" provision, which offers a piddling one-time fee for almost every new-media right in perpetuity? Before Parenting's move to New York, that clause had a time limit, and writers could pare the list of uses down to the magazine's Web site alone. Can that part be negotiated today? Chan tried hard not to say no. But she couldn't bring herself to say yes.
Articles and book chapters may be used in university coursepacks only with permission of the copyright owner. That's the definitive word from the U.S. Supreme Court, which this week declined to hear a final appeal from a Michigan copy shop, which has been arguing in court that compiling excerpts--in one case as much as 30 percent of a book--to sell to students for assigned reading was "fair use" and required neither permission nor fee. The shop was sued by three publishers.
Last year, in an unusual author-publisher alliance, the Authors Registry, the Authors Guild, the American Society of Journalists and Authors and the Text and Academic Authors Association filed a brief in support of the publisher plaintiffs. The 6th U.S. Circuit Court of Appeals voted 8 to 5 against the copy shop, ruling that "commercial exploitation of the copyrighted materials did not constitute fair use."
Now, perhaps publishers and authors can get down to settling the question of just who should be granting permission and accepting the fees. Authors maintain that some publishers, acting directly or through the Copyright Clearance Center, either grant reprint permission without authority or fail to divide reuse fees with authors even when required to do so by contract.
And lest anyone think reuse fees for short writings are measured in pennies, a recent experience shows otherwise. When a freelancer learned that a mutual fund company featured in his recent article in a personal finance magazine had just ordered 30,000 reprints, he protested that he had never licensed reprint rights to the magazine. The editor confessed that the publisher had sold reprints of two earlier articles by the writer as well, and grudgingly offered $300 to cover all three deals.
After a few go-arounds with a company lawyer, the writer settled for roughly half the take--netting him $8,000--plus a written promise of half of any future reprint fees earned by the articles. A 50-50 split is the standard arrangement when reprint rights are granted to a publisher; this publisher got off easy, since it had no right to make the deal in the first place.
Commercial bulk reprints can be pretty profitable for publishers and, often, for middlemen who arrange the deals. Freelancers who casually sign over reprint rights for free, or who let publishers act as though they own articles when reprint purchasers come calling, are not doing their pocketbooks a favor.
Count "The Week in Review" among the sections of the NEW YORK TIMES that don't insist on work made for hire, further giving the lie to the notion that the Times has a uniform newspaper-wide policy of taking copyright and all other rights from freelancers. A recent Week in Review deal reported to Contracts Watch contains the same terms now offered by several other sections: greedy but not all the way. The various "easier" Times sections don't grab your watch, your wallet and your diamond ring--just your watch and your wallet.
Still, it's interesting to hear some Times editors say--perhaps with crossed fingers behind their backs--that the company's work-made-for-hire policy is very strict. And to hear some would-be copycat publishers try to institute their own grabby contracts inspired by a Times "rule" that never really existed.
Three freelance photographers and their organization have sued the ASSOCIATED PRESS for ordering freelancers to turn over copyright as a condition of assignment and simply taking over ownership from those who tried to resist. The suit, filed this week in U.S. District Court in New York City, cites federal antitrust laws and argues that AP has "wrongfully used its dominant position" in compelling freelancers to give up copyright and in relicensing their photographs beyond their member newspapers without credit or further compensation.
The National Association of Freelance Photographers, formed last year by more than 300 AP regulars, joined three of its members suing as individuals in asking the court for a declaration that freelancers own copyright in their works despite a legend printed on the face of AP's payment checks that the AP says makes it the copyright owner. The lawsuit also asks for an injunction prohibiting extra uses of their work without extra payment and credit, a further injunction against requiring copyright transfer as a condition of working, and damages.
As an example of AP's commercial reuse of photos, the complaint mentions a shot of O.J. and Nicole Brown Simpson that has been "published and broadcast extensively" and "appeared on T-shirts and memorabilia" with neither compensation nor credit for the photographer.
In a story distributed by the AP itself, executive photo editor Vin Alabiso said the news agency "has always treated freelance photographers fairly and will defend itself vigorously against these charges."
Many ASJA members and others send a stream of contracts, information and scuttlebutt so that these dispatches can be as informative as possible. Thanks to all.
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A complete, searchable archive of ASJA Contracts Watch is available on the World Wide Web. Find it--with other valuable information and tips on freelance contracts, electronic rights and copyright--at the Web address below.
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Received on Wed Apr 02 1997 - 20:00:08 GMT
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