ASJA Contracts Watch 61 from ASJA/Alexandra Owens on 1999-02-24 (CNI-COPYRIGHT)

From: ASJA/Alexandra Owens <asja[_at_]compuserve.com>
Date: Wed, 24 Feb 1999 12:24:47 -0500

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ASJA CONTRACTS WATCH 61 (vol 6, #2) CW990224 February 24, 1999

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Some Web writers work it out: HMS BEAGLE and ABCNEWS.COM examples.
At SKI and SKIING, things have gone downhill for freelancers.
Boy Scouts promise, on their honor, to improve BOYS' LIFE contract.
In Canada, an e-rights lawsuit takes a giant step forward.
When is "first rights" more than first rights?
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Whether writing for Web-based magazines or for print publications that have an online presence on the side, freelancers frequently are offered a single fee for the right to keep articles online permanently. Such an arrangement wrests from writers the essence of online publication, which entails ongoing use of words and pictures. No Webzine will sell perpetual ad space for a single fee; advertisers pay by time or by traffic, or a combination. The words and art that support those continuing ad payments--or continuing publisher promotion--should bring continuing payments too.

So how should a Web contract be written? In one recent deal, with some tinkering, a writer and HMS BEAGLE (part of BioMedNet, an ELSEVIER SCIENCE property) got it right. After rejecting a first bid for all rights including copyright, and then a fallback contract that was still too broad, the writer proposed:

> A base fee for two to three weeks on the site.
> Another, smaller fee for a year's archive rights.
> An option to renew, at a still smaller fee per year thereafter.
> An option for one-time print use on terms to be negotiated.
The first two fees were paid on acceptance; the option fees are to be paid if and when exercised.

Another writer who rejected an all-rights offer from ABCNEWS.COM for a series of columns worked out an agreement covering a year's exclusive online use, period. Permanent use thereafter on a nonexclusive basis was negotiated out of the contract. To use the material online beyond the year, ABC would pay again.

SKI and SKIING have just slid from the "OK" column to the "No Way" column. When the two TIMES MIRROR magazines launched their SkiNet online site a few years ago, they agreed to pay freelancers small extra fees for a year's use of selected articles (ASJA Contracts Watch 19, Nov. 1, 1995, www.asja.org/cw951101.htm). But the deal is no more. If you write for us, the magazines now tell freelancers, we can use your article online forever, for no extra money. Writers--and Contracts Watch--have been given the tired argument heard often: the Website isn't earning as much as we hoped.

Does any startup avoid red ink? Would any publisher demand that writers donate their work for a print venture that didn't meet profit expectations? Would a multi-billion-dollar corporation like Times Mirror continue a money-losing project for no reason? Have SkiNet staffers stopped drawing a salary? Are Web services no longer being paid? Are ad sales reps not claiming commissions? Has SkiNet told the phone company, "Sorry, we can no longer afford to pay your bill"?

And the editors offer a second excuse for unilaterally changing the rules: Not enough other print magazines pay extra for online use, so why should we? (The other big kids beat up the little kids in the schoolyard, so we will, too.)

In a talk with Contracts Watch, one editor allowed that the new edict was "a corporate decision," and that "it's not perfectly reasonable, but it was unavoidable." He added, "We're hoping it's temporary."

Magazines published by "good guy" organizations might be expected to deal more reasonably than commercial media behemoths. Not always so. Case in point: BOYS' LIFE (from Boy Scouts of America) has a peculiar, onerous contract that the magazine's editors seem helpless to justify or fix. It's one of those offensive documents that unnecessarily and inexcusably take the writer's copyright and then pass it back 90 days after publication, keeping broad electronic rights and the right to reprint an article in promotional brochures and the like forever. For good measure, it makes the writer liable for even a frivolous claim or lawsuit.

But after considerable prodding, editor-in-chief J.D. Owen now tells Contracts Watch the magazine will right part of what's wrong, by starting to pass along to contributors a share of the royalties from various electronic databases. This isn't the first time Boys' Life writers have been promised a piece of what BSA takes in from extra uses of their articles, but this time Owen pledges to do it "this year, and I hope in the first half of this year." Scout's honor, we presume.

No word, however, about cleaning up the rest of the magazine's contract act, which would start with leaving the copyright where it belongs: with the writer.

For freelance writers, there's good news from Canada. A judge in the Ontario Court of Justice has ruled that a writer's lawsuit over unauthorized database use of published articles (Contracts Watch 34, Sept. 3, 1996, www.asja.org/cw960903.htm) may proceed as a class action. Defendants are the THOMSON empire (THE GLOBE AND MAIL, GALE RESEARCH and many others) and INFORMATION ACCESS COMPANY (the giant Thomson subsidiary headquartered in California, producer of many widely available article databases).

A similar case in the U.S., "Tasini et al. v. the New York Times et al.," was successfully defended at the first level by the publishers and database compilers sued; the parties await a decision on the writers' appeal. (Contracts Watch 56, Feb. 17, 1998, www.asja.org/cw980217.htm.) That suit, however, was brought by several individual writers; there was no motion for class action status.

As newspaper and magazine contracts grow increasingly complicated, Contracts Watch hears more frequent reports of editors trying, and failing, to say just what those sometimes perplexing documents mean. In printed guidelines, in writers' magazine questionnaires, in discussions with freelancers, some editors don't tell the whole story. Most typically, they simplify and understate the rights the publisher wants. "I know you don't want to sell us all rights," they say. "So I'll send our first rights contract." The contract arrives. It may say "first rights" or even "one-time rights" at the top, or in the text. But read on. It may also say a whole lot more.

A recent example: a startup women's magazine's contract, described by its editor as "first North American rights," indeed opens with that. But the second paragraph adds "(a) the right, without additional compensation, to reproduce and publish the Work or any part of it for advertising and promotion of the magazine...and (b) the nonexclusive right to reproduce and publish the Work in all forms and media in all

languages throughout the world" and tosses in, for good measure, the 
right to sublicense those rights to others. That's first rights, yes, 
but also second, third, 14th and 99th. All for the original fee, no

matter how numerous or farflung the reuses.

Freelancing is a business. People in business have to pay attention to make sure they don't sign away the store. The headline on a contract may not tell all. One good-sounding phrase doesn't mean the rest of the story will be as sweet. When an editor gives a short description of a contract, the freelancer has to make sure it's not only the truth but the whole truth.

* * * * * * *

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Received on Wed Feb 24 1999 - 17:28:03 GMT

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