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ASJA CONTRACTS WATCH 59 (vol 5, #5) CW980825 August 25, 1998
News of the UNCOVER lawsuit, NEWHOUSE NEWSPAPERS, CONDE NAST, WIRED, AMERICAN WAY, SOUTHWEST SPIRIT, SUCCESS, WORKING MOTHER, WORKING WOMAN, SIRS, THE AUTHORS REGISTRY, MUSE and more...
(Free subscription instructions at the end. Details of specific contracts and amendments mentioned here are available from ASJA.)
In federal court in San Francisco earlier this month, oral arguments were heard on a plaintiffs' motion for summary judgment in the copyright infringement case brought by five freelance writers against UNCOVER, the fax reprint service (ASJA Contracts Watch, Nov. 13, 1997, http://www.asja.org/cw971113.htm).
Writers have long protested publishers that take in royalties from "document delivery" deals made without their permission. But a source tells Contracts Watch that discovery in this case has revealed that UnCover has peddled some article reprints with no OK from the publisher either. According to the source, the plaintiffs' legal team visited UnCover's home office in Denver and combed more than 100 boxes of documents, including complaint letters from writers and publishers, and concluded that "the system has been based on a policy of sell first, ask later."
Uncover, one of the writers' lawyers told the judge, is "an infringement machine."
Freelancers can search for their bylines on the UnCover Website (http://www.uncweb.carl.org/) for free. If a citation list results, each item must be opened to determine if reprints are actually being offered for sale by UnCover. Many citations are index listings only.
Various NEWHOUSE NEWSPAPERS, from the STATEN ISLAND ADVANCE to the OREGONIAN of Portland, continue to send contracts that call for all freelance pieces to be "work made for hire," the out-and-out property of the newspaper. As happens with many publications, writers who reject the demand usually get a second offer, which is further negotiable. Most contributors still end up with far from a good deal.
CONDE NAST magazines, also in the Newhouse family (ADVANCE PUBLICATIONS), often try the same approach: Get what you can. Even WIRED, recently added to the Conde Nast group, now standardly starts with a copyright transfer agreement. Writers who know ask for Conde Nast's "350" contract instead. (The publisher has several forms, labeled by number.) Editors routinely OK several improvements in the "350." But in the end, Conde Nast magazines, like their sister newspapers, do not often offer a deal it's smart to accept.
Once upon a time, AMERICAN AIRLINES PUBLISHING had a not-bad basic agreement for its magazines, AMERICAN WAY and SOUTHWEST SPIRIT, and editors were able and willing to fine-tune it into a solidly fair deal. Then management and its lawyer spoiled a pretty good thing by dreaming up a new contract with several unreasonable provisions.
The magazines' editors say they're in ongoing contract talks with the people upstairs. Meantime, the editor of Spirit tells Contracts Watch he's flexible within "boundaries"; the editor of American Way says, "We try to keep our standard contract just that."
If the magazines don't flex, they'll be behind many competitors. Magazines from Continental, Delta, TWA, United and US Airways, for example, all issue more writer-friendly contracts or peacefully negotiate to keep smart writers coming back.
Another magazine with new paperwork is SUCCESS. Its new contract, just gone into use, has good points (fair warranty, no indemnification), but other parts are lopsided. The magazine's lawyer and editor say they'll confer shortly and consider changes. Until then, the editor says, it's "basically" take it or leave it. Any writer with the business savvy to write for Success ought to have the business savvy to leave it.
Two more with fresh contracts about to see daylight: WORKING MOTHER and WORKING WOMAN. Two years ago, the magazines' then-new owner, Jay MacDonald, announced: "We will have a new contract with the creative community that ensures separate compensation over and above one-time print use" (Contracts Watch, June 28, 1996, http://www.asja.org/cw960628.htm).
Since then, while the contract was in the works, ASJA repeatedly reminded company officers of that pledge. This month, at last, the drafting was declared done. Does the contract match the promise? Nope.
The draft agreement asks for several extra rights without payment and shares other serious shortcomings with the new Success contract. (Same lawyer, many of the same terms.) Last week, ASJA raised objections in detail. Now, word is editors won't start using the draft until it has been "revisited."
A writer who carefully followed ASJA's advice and wrote editing approval into a magazine contract reports the precaution worked. When an editor mentioned some alterations he hadn't seen, says the writer, "I whipped out my contract and faxed them the clause about changes only with my permission, `not to be unreasonably withheld.' They quickly faxed back the edited version." Things were resolved.
Another penned-in contract precaution has paid off for a freelancer. The tip might appeal to writers who have had to battle for a fee increase when the scope of a story is expanded as it's being reported and written. "If Publisher and Author agree on a longer article," the clause says, "appropriate compensation shall be negotiated within the approximate length-to-fee range established in this contract." When the writer produced an extra sidebar, he pointed to the clause and, with no dispute, received the appropriate extra fee.
SIRS (Social Issues Resource Series) picks up magazine articles for its CD-ROM and online databases, sold by subscription to schools and libraries. Writers report that SIRS typically offers as little as $75 or $100 for permanent rights, but those who negotiate can end up with several times the money for use limited to three years.
Articles and excerpts for print anthologies typically are licensed per edition, with an option to renew for later editions. Similarly, with online anthologies--as with all online publication--the freelancer is best served by licensing use for a limited time, again giving the publisher an option to renew.
The AUTHORS REGISTRY, the not-for-profit licensing and payment clearinghouse, says it has now distributed more than $800,000 in royalties to writers for photocopy and electronic use of their articles. Tens of thousands of published authors are reachable through the Registry, which is supported by a long roster of writers' organizations and literary agencies, whose members and clients may register without charge. Unaffiliated writers pay $10 to join. Authors Registry: http://www.authorsregistry.org/, registry[_at_]interport.net, 212-563-6920.
Writers report that MUSE (the kids' version of SMITHSONIAN magazine, produced by CARUS PUBLISHING), is pleasant about negotiating away several contract problems. Among the fixes: Rights acquired are pared way back, further payments are promised for secondary uses the magazine does acquire, writer has editing approval, and checks come faster.
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BEFORE YOU SIGN, check out your magazine or newspaper and its parent company in ASJA Contracts Watch. A complete, searchable archive is available on the World Wide Web. Find it--with other valuable information and tips on freelance contracts, rights and copyright--at the Web address below.
TO ASJA MEMBERS AND OTHERS who send contracts, information and scuttlebutt: Thanks. Inquiries from all are welcome.
Contracts Committee, ASJA
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Received on Tue Aug 25 1998 - 17:38:04 GMT
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