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ASJA CONTRACTS WATCH 48 (vol 4, #9) CW970729 July 29, 1997
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News of FANCY FOOD, PARENTING, SMITHSONIAN, AMERICAN HEALTH, NEW YORK, CONSUMERS DIGEST, MODE, ONBOARD MEDIA, JOURNAL OF THE NATIONAL CANCER INSTITUTE, more...
A writer has won a $2,100 judgment against a magazine publisher for reusing seven previously published articles on its Website without her approval. TALCOTT COMMUNICATIONS CORP., publisher of FANCY FOOD and other trade magazines, was ordered to pay the writer after failing to appear in a breach-of-contract suit earlier this month in New York City Small Claims Court.
"I never licensed Web rights to my articles," the writer told ASJA Contracts Watch. "When I called and pointed that out, the publisher said everything they publish becomes their property unless the writer makes restrictions. I explained that according to the law they had it backward, and their answer to that was silence. They took my articles off the site but refused to pay for several months of usage, so I sued. It's a shame when a publisher doesn't respect our work and our rights. It's a shame when we have to look to the judicial system for relief."
A Talcott official gave Contracts Watch a "no comment" on the court judgment, adding only that the company was "trying to work it out" with the victorious freelancer.
In a similar recent situation, a regional parenting publication operating without benefit of written contract was caught reusing a freelancer's article on the World Wide Web. The publisher promptly apologized and agreed to buy a year's use on the site for 20 percent of the original fee.
During the 1995 launch of their ventures on the Web and America Online, PARENTING's editors won praise for inking in a simple sentence covering only those online uses through 1997 for a small fee, in place of a corporate E-Rights Clause From Hell (the magazine is owned by TIME INC.) By 1998, the contract promised, the magazine would start paying usage-based royalties for continuing rights.
Now, with the end of those licenses drawing near, Parenting has written to writers whose work is on the sites. Sorry, the letter says, we won't start paying royalties next year, but "we still have every intention of sharing profits with contributors--including you." This time, no start date is mentioned, and meanwhile, writers are offered a small (OK, tiny: $25) fee, covering a two-year extension of the license for both sites.
But Parenting articles commissioned since late last year aren't in line for the promised future payments. Freelancers writing for the magazine lately are those who have knuckled under to Parenting's new insistence on a clause giving virtually all electronic rights forever, with no provision for future payments. Which is one reason writers with a little pride and a little business sense avoid Parenting these days.
SMITHSONIAN has been acquiring Web rights to back-page essays published in the magazine. (Feature articles appear on the magazine's Website in abstract only.) Recent contracts devote several sentences to introducing the Web project and offer an additional $50 "as a token of good faith." The contract says the money is "for electronic use of this material." It should specify a time period and a single site; editors will make those changes for the asking, or drop the clause and leave the essay earthbound.
The standard Smithsonian agreement also asks for permanent database rights, but the magazine hasn't yet come around to paying for those rights. Instead, on request, the line may be altered to read, "Smithsonian will block your work from being reproduced on electronic research databases."
Freelancers keep reporting that AMERICAN HEALTH (a property of READER'S DIGEST ASSN.) accepts several major alterations to its usual article contract, making for a pretty fair agreement. The changes, recommended by ASJA, cover such areas as rights granted, compensation for secondary uses, editing, exclusivity period and warranty. But contributors who haven't yet been paid the share of income promised by the magazine's regular e-rights clause are growing itchy, a situation that needs the attention of RDA management.
Meanwhile, under a new editorial regime, the magazine continues the inherited practice of asking writers of short items to sign work-made-for-hire agreements. That's an unfair policy that weakens American Health's position as writer-friendly.
NEW YORK freelancers have a right to be impatient, too. It was a year and a half ago that parent K-III MAGAZINE CORP., prodded by ASJA and several frequent contributors, stopped unauthorized online and CD-ROM database use of articles and made across-the-board partial restitution. At the time, K-III said it would turn over to writers all the royalties it had earned from database agreements. The publisher divided the earnings from one database company evenly and paid freelance contributors $55.12 per article; some regulars collected four-figure payouts. A K-III lawyer promised that checks to cover royalties from another database deal would come later. The writers are still waiting.
CONSUMERS DIGEST keeps shipping the true sucker contract, ordering freelance articles as works made for hire (under which publisher and creator legally pretend the creator is on staff, and so must give up all claim to rights, compensation for all reuses, byline and any other connection to the work). For writers who object, CD editors will turn the rights clause into something a lot less reaching, but still haven't decided to do it right in the first place.
CD also will qualify the author's warranty as "to the best of your knowledge," six helpful words more and more magazine publishers are including in their boilerplate or adding on request.
Among other publications reported to improve terms readily for writers who reject their first offers: MODE, the new magazine for women of a certain size, and ONBOARD MEDIA, which produces custom magazines for several major cruise lines.
Inquiring writers may obtain details of all contracts reported here. Contact the ASJA office.
The JOURNAL OF THE NATIONAL CANCER INSTITUTE, privatized in a January deal between the government agency and Oxford University Press, has lost several regular outside contributors because the Journal insisted they start turning over copyright in their articles to Oxford. Some members of Congress are disturbed by the Oxford arrangement, which they say lets a private company make money from the work of the government-funded journal staff and government-funded researchers. In a letter published in the June 18 issue of Science, commenting on the weekly's recent article on the controversy, ASJA president Claire Safran warned that the deal also "in effect subverts the intent of U.S. copyright law." That law, she points out, "derives from Article I, Section 8 of the U.S. Constitution, which authorizes Congress to provide for protection of creative works in order to encourage `authors and inventors.' There is no mention of encouraging publishers."
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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 Tue Jul 29 1997 - 17:44:04 GMT
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