ASJA Contracts Watch 62

From: ASJA/Alexandra Owens <asja[_at_]compuserve.com>
Date: Wed, 21 Apr 1999 16:05:36 -0400

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ASJA CONTRACTS WATCH 62 (vol 6, #3) CW990421 April 21, 1999

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THE WORLD & I, a monthly published by the WASHINGTON TIMES, asks for one-time rights for photographs but multiple rights for words, even when the same person provides both. But under the terms of one recent deal, the publisher's rights to an article were scaled back to first use in print only, with any other uses to be "on terms to be negotiated."

Writer and editor also agreed to qualify the author's warranty as "to the best of his or her knowledge," and to replace the publisher's license to do "minor editing ... without review by the author" with the author's pledge to turn around edited copy within 24 hours.

Not improved: payment on publication--which, although somewhat softened in this case by the setting of a pub date in the contract, is still enough to keep many careful freelancers away. (Since date of publication is always subject to change, to professional writers "pay on pub" is a major no-no. Payment within 30 days of delivery is standard in most industries; why should delivery of words be an exception? Do you pay for the pie when you leave the bakery, or when you get home and eat it?)

Freelancers thinking of dealing with SESAME STREET PARENTS, published by the not-for-profit Children's Television Workshop, should watch their backs as much as with any commercial publisher:

  1. SSP editors often send writers a work made for hire contract to see what they can catch, usually substituting "the other contract" when the writer makes a "What's this all about?" call. For contributions to long-standing columns that they want to keep as their "branded property," they may insist. But why? If the goal is to keep the writer from republishing the article, that can be accomplished with a single line: "You agree never to authorize any other publication of the Work in any form without the permission of the publisher." The writer may then license to the publisher one-time use for the initial fee, with further payments to accompany any further uses.
  2. When SSP began looking for Web rights to articles it publishes under "the other contract," the magazine offered an extra fee for a year's use. After a while, the time limit disappeared. ASJA objected on behalf of freelancers unhappy with selling the right to keep their articles online forever for a one-time fee. For more than a year, the magazine's publisher, Ira Wolfman, dangled hope that he'd turn things around. He didn't. Wolfman now tells ASJA Contracts Watch that "at this time," the contract stands. Writers who bring their own ideas to the magazine may strike the Web rights clause entirely, he says, but for writers who are fed an idea by an editor, "we'll talk about it." In the online world, continuing use calls for continuing payment. Advertisers know it; that's how they pay for ads on the Web. Photographers and their stock agencies know it; that's how they're paid for online use. Publishers know it, too. It's elementary.

More sour news for those whose specialty is articles about parenting: Freelancers' recent complaints of a turn-about at PARENTS are true. For some time, Contracts Watch has pointed to Parents as a magazine that deals reasonably with freelancers who take their business seriously. No more.

For most writers, the magazine's new top editor, Sally Lee, doesn't want her staff to spend any time and effort editing contracts, as was routinely done for the asking under her predecessor (and as is done at other GRUNER + JAHR titles). In an undiplomatic burst of bluntness, Lee tells Contracts Watch: "There are different levels of customizing contracts. Some writers we really, really want to work with. Others, who are doing journeyman's work, don't have anything in particular to bring to us, so we won't go to bat for them."

It's reasonable for a magazine to pay different fees for stories it views as being of different value. But when it comes to the basic terms of ownership that define freelancers' current struggle, a magazine that insists on extra rights without appropriate extra pay--as Parents now does--moves way down on the smart freelancer's list.

When a READER'S DIGEST reprint permission request shows up unexpectedly, some writers consider it an offer of found money and sign without a question. Others, who take their freelancing seriously, negotiate to protect their property rights and get more money for the deal.

Recent negotiations have yielded these improvements for writers:

+ The Digest's claim of three months' exclusivity - dropped.

+ The Digest's claim of copyright in the condensation - dropped in favor of author's agreement not to reuse the condensed version.

+ The Digest's stubborn practice of paying half the fee to the writer, half to the original publisher, even if the writer retained the rights - dropped when the writer got the first publisher to waive "its share"; thus, $600 a page became $1,200 a page.

A photographer who had made the usual one-time print use deal with the AARP BULLETIN (American Association of Retired Persons) found his photos had been scanned and placed on the AARP's Website. The Bulletin conceded it owed for the use, but a bit of back-and-forth was needed to nail down the terms: Web use for the life of the issue--a month--plus two years in an archive, with an option to extend the use for further payment.

The short word on contracts at two fairly new magazines aimed at cancer patients:

MAMM's letter of agreement runs four pages. But judging from one amended contract seen by Contracts Watch, its serious bad points (such as the claim of perpetual Web rights without further compensation) can be comfortably negotiated out.

On the other hand, at IN TOUCH, what began as a work made for hire contract has been markedly improved, but the publisher still wants all electronic rights forever, and promotional use of an entire article, both as part of the base fee. Word from the magazine is that changes may be considered "in some circumstances," but "for the most part the terms are fixed."

As always, clause-by-clause details are available from ASJA.  

Q: My contract has an exclusivity clause and a non-compete clause that stop me from republishing the article or writing on the same subject until after the piece is published. What if it isn't used after a year or two? Can I be blocked forever from getting it published elsewhere or even writing about one of my favorite subjects? How can I prevent that?

  1. Other than asking the editor to concede that the magazine isn't going to use the story, and to release it, there isn't much recourse. That's why it's smart to have a deadline for publication worked into your agreement, as is standard in book contracts. For magazines or newspapers, this language works: "If the article is not published within one year of delivery, all rights licensed revert automatically to the author unless extended by mutual agreement." The reversion date can be sooner if the subject is timely, later if an evergreen at a publication with a big inventory.

ASJA is receiving a growing number of inquiries about bulk reprint deals, in which copies of articles as published are sold for promotional use, sometimes by the publisher directly, sometimes through a reprint service.

In one relatively small transaction with a service, the author of a short piece from an inflight magazine, advised by ASJA to make sure the fee covered a specified number of copies, negotiated to add the words "per thousand" to the permission letter. The writer agreed to a modest $200 for the right to make 1,000 reprints. When the end customer raised the order to 5,000 copies, the writer's take went to $1,000. The two words, "per thousand," meant $800 extra for the writer: $400 a word.

Publishers' contracts that call for all rights or have an extra clause granting reprint or broad promotion rights for free cut writers out of such arrangements entirely. As usual, it pays to be on guard.

THE AMERICAN SOCIETY OF JOURNALISTS AND AUTHORS encourages reproduction and distribution of this document for the benefit of freelance writers. Reprint or post as many items as you wish, but please credit ASJA for the information and don't change the content.

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BEFORE YOU SIGN, check out that 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 in strict confidence: Thanks. Inquiries from all are welcome. 

                  Contracts Committee, ASJA
                  1501 Broadway, New York, NY 10036
                  tel 212-997-0947
                  fax 212-768-7414
                  contracts[_at_]asja.org
                  http://www.asja.org/cwpage.htm
Received on Wed Apr 21 1999 - 20:12:28 GMT

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