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ASJA CONTRACTS WATCH 60 (vol 6, #1) CW990104 January 4, 1999
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COOKING LIGHT (SOUTHERN PROGRESS) has told a freelance writer, after two successful pieces for the magazine, that he's no longer welcome in its pages. The writer's crime? As explained by the editor, he revealed contract terms and their negotiations to "uninvolved others." The freelancer--who has scores of credits in major magazines--was one of several whose reports of CL's rigid position on its newly greedy contract formed the basis of unflattering items in ASJA Contracts Watch (Feb. 17, 1998, www.asja.org/cw980217.htm; April 9, 1998, www.asja.org/cw980409.htm).
In an e-mail exchange after being rebuffed, the writer expressed dismay that at Cooking Light, "writers who stand up for themselves during contract negotiations can be branded as nuisances, even after they've proven themselves capable of delivering quality work." On the contrary, the editor replied, "I expect each and every person to stand up for him- or herself, within the bounds of reason." Apparently, "the bounds of reason" does not include helping colleagues by giving information to Contracts Watch.
Cooking Light's editor, Doug Crichton, told Contracts Watch he didn't want to discuss the matter.
Information sharing is independent writers' most powerful weapon; that's the whole idea behind Contracts Watch. Editor Crichton would like freelancers to stop trading news about publishers. That isn't going to happen.
The ongoing lawsuit ("Ryan v. CARL," ASJA Contracts Watch, August 25, 1998, http://www.asja.org/cw980825.htm), against UNCOVER, called the biggest of the many companies that sell magazine and journal article reprints by fax, is in a holding pattern.
In October, Judge Fern M. Smith of the federal district court in San Francisco gave a big nod to the writer plaintiffs when she refused to let UnCover hide behind the 1997 ruling in "Tasini v. the New York Times," in which a New York federal district judge gave publishers free reign to sublicense articles to electronic databases without the authors' say-so. (A decision in the appeal of that case is pending.) The San Francisco judge ruled that the right to authorize individual reprints belongs to the publisher only if the author-publisher contract says so; otherwise, it remains with the author.
Since UnCover had no permissions from the authors, the company must rely on the permissions it says came from the publishers involved--licenses the plaintiff authors say aren't valid because they never granted that right to the publishers. But until the court rules on whether the suit will go forward as a class action or only as an action by a few individual authors, all activity in the case--described by one observer as "a major discovery war"--has stopped.
In a similar situation that never reached court, a photographer, alerted by ASJA, caught the database company UMI peddling reprints--electronically and on paper--of an AUDUBON magazine article that included his photos. He went directly to the magazine's publisher, the National Audubon Society, which has an ongoing deal with UMI, and demanded payment. Audubon tried citing the "Tasini" ruling. But that decision, the persistent photographer pointed out, doesn't cover paper reprints of individual articles. Audubon backed down, paid $1,500 and promised his work wouldn't be sublicensed again.
It isn't only photographers. Several freelance writers recently have sent Contracts Watch reports that fit this pattern: Freelancer's article is published. Freelancer finds out that publisher has reused or sublicensed the article without benefit of contract. Freelancer notifies publisher and, where necessary, persists. Publisher negotiates a cash settlement. Some examples:
+ According to the contract, INC. had Web rights to a freelance article but not third-party rights, yet it sublicensed a piece to the Wall Street Journal Online. The freelancer wrote to point out the infraction and enclosed an invoice; Inc. paid.
+ EATING WELL (HACHETTE) agreed to delete the usual e-rights clause from a columnist's contract, then posted four of the columns to its Website. When called on the violation, the publisher first offered $100 a story--what it routinely pays for such rights under contract--but eventually paid four times that and removed the works from the site. "I had extra negotiating leverage," the writer explains, "because not only did I have an ironclad contract, but I had taken the trouble to register all the articles with the Copyright Office in a timely manner." (For information on why and how to register articles, see http://www.asja.org/copyrite.htm or ask the ASJA office for "Copyright Registration for Freelance Writers.")
+ INFORMATION WEEK (CMP) made a deal for promotional reprints with a company covered in a freelancer's story. The writer found out and sent an invoice. After hemming and hawing and lawyering, CMP paid. (Bulk reprints are a growing business, and a growing concern to freelancers. Since the buyer wants the magazine's name as well as the writer's words, it's reasonable for author and publisher to split the income if arranged in advance. It is not reasonable for the publisher to take it all. And if it isn't in the contract, it's illegal for the publisher to make the deal in the first place.)
+ The Web publication BIZTRAVEL.COM peddled a freelancer's piece to another Website after its sublicensing right under contract had expired. The writer asked and collected triple the original fee.
A freelancer's negotiation with GARDEN DESIGN turned a lopsided agreement into a pretty good one. Other writers have found GD editors unwilling to change owner MEIGHER COMMUNICATIONS' super-greedy contract, but perhaps the magazine is coming around. Its sister title, SAVEUR, has long accepted a series of improvements to the Meigher contract as recommended by ASJA.
Among other magazines that start out with unsignable contracts but have lately negotiated significant improvements for freelancers who consulted with ASJA: MOTHER EARTH NEWS (SUSSEX), WINE ENTHUSIAST, SMALL BUSINESS COMPUTING (CURTCO). As always, details are available from ASJA.
A writer concluded a pleasant negotiation with LANDS' END, which signs up articles for its mail order catalogs. The deal covers use in a single catalog in the US and up to three international editions, with an option for other editions for further payment, and separate pay for up to three years on the Internet with an option to renew.
HEMISPHERES, the United Airlines magazine, generally uses the standard PACE COMMUNICATIONS contract, which needs only a few changes. (Indemnification and the claim of "the right to reprint or quote the article without fee or permission" for 120 days are regularly dropped for the asking.) But some Hemispheres writers have been sent agreements that toss in a limitless "electronic publication" gratis--another thing to delete or beef up with "for payment to be negotiated."
And the magazine sometimes tries out all-rights contracts for articles in certain departments. Which departments? Those that promise aftermarket profits--most notably, entries in the Three Perfect Days series. The features are later sold to readers as reprints ($5 and up), gathered into books (volume one is just out, volume two is on the way) and used as the basis for a television travel series. (No wonder the publisher wants all rights; no wonder smart writers say no.)
At least one contributor has found that with firmness Hemispheres could be brought around to a deal listing only the specific rights it wanted and giving separate compensation for each.
When it launched, MR. FOOD'S EASY COOKING (HEARST) was reported (Contracts Watch, March 13, 1997, http://www.asja.org/cw970313.htm) as willing to flex on the usual Hearst contract terms, which many writers find onerous enough to keep them away from the company's magazines. But having heard that Mr. Food's flexibility is gone, Contracts Watch asked both the editor and the division president above him if the report was true. Neither would say.
Two years ago, Jay MacDonald, publisher of WORKING MOTHER and WORKING WOMAN, pledged to replace his drastic contract with a new agreement that would be supportive of writers. The promise was accompanied by flowery talk of respect for "the creative community."
Over the summer, the publisher finally readied a draft contract that turned out to be a huge disappointment: The terms were far from what had been promised. In fact, they were very nearly the old terms in sheep's clothing. A company representative said the new paperwork wouldn't be used while improvements were considered, but that lasted only days. The "new" contract--still unacceptable by any savvy freelancer's standards--is now in use at both "Working" magazines.
ASJA reminded MacDonald of his promise and asked his comment. He had none.
Another magazine that has reneged is PUBLISHERS WEEKLY. Top officials of the magazine had promised--very publicly--to pay contributors for past electronic database use of reviews and articles, and to make ongoing future sub rights payments through the Authors Registry. It never happened.
For a long time, the excuse was office reorganization. But finally, the promise was formally broken. According to the folks at PW, higher management--the magazine is part of CAHNERS BUSINESS INFORMATION, owned by REED ELSEVIER--overruled them. Instead of payments for secondary uses, PW writers have been sent forms, "as a formality," that not only grab the eternal right to use and reuse works, but contain that most ludicrous of all contract provisions: a claim of rights not only to future writing but to writing already published. (Since PW has been acting as though it already has those rights, that amounts to amnesty.) Smart reviewers will drop PW.
Apparently, with Cahners as with MacDonald, being a publisher means never having to keep your promises.
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Received on Mon Jan 04 1999 - 16:05:17 GMT
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