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ASJA CONTRACTS WATCH 63 (vol 6, #4) CW990625 June 25, 1999
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BOYS' LIFE has made good on a promise to ASJA Contracts Watch (Feb. 24, 1999, http://www.asja.org/cw990224.htm). The newest contract from the monthly published by the Boy Scouts of America says that half of all royalties from sublicensed electronic distribution of articles will be distributed to contributors through the Authors Registry. The magazine also has fixed the part of its agreement letter that awkwardly and needlessly claimed freelancers' copyrights.
But despite those two good moves, other serious contract problems remain, including a claim of some promotional and other extra rights for free and a super-broad indemnification that no cautious freelancer would accept. Next time around, perhaps?
Speaking of the AUTHORS REGISTRY, the not-for-profit clearinghouse (http://www.authorsregistry.org/) reports that it has just passed the $1-million mark in royalties paid to authors for photocopy, electronic and other secondary uses of published works.
Another magazine that is making good on a pledge to improve its contracts is SCIENCE, the journal of the American Association for the Advancement of Science (AAAS), which has already begun to split database royalties and other secondary publication income with contributors of news articles. (Authors of research papers get a different, sadder deal. They might read the article "Journal Authors: Intellectual Property Landlords or Migrant Workers?" at http://www.asja.org/academic.htm.) The weekly says it has mailed 120 freelance writers extra money for the extra uses, ranging from small stuff to as much as $600. ASJA has pointed out some lingering weaknesses in this year's new Science contract; the editors say they're looking into righting the remaining wrongs.
In the area of liability, Science's contract rewriters have obviously worked hard and have come very, very close. The magazine now includes its writers under its insurance coverage--something few periodical publishers do, although insurers say their policies ordinarily allow freelancers to be covered with no fuss and no expense. Science's new warranty and indemnification clause is scrupulously worded and fair almost all the way--the magazine shoulders all risk unless the writer is at fault. The flaw is the lack of author approval over settlement of a claim. Should a magazine be free to agree to settle and send the writer the bill? ASJA thinks not.
Another science magazine has a simpler take on the liability issue, and it looks good: BIOSCIENCE, from the American Institute of Biological Sciences. Its new language properly handles those warranties that need qualification ("...all reasonable care...") and assigns liability only if a court says the writer is at fault:
"The Author represents and warrants to AIBS that his or her contribution is original and that he or she has full power to make this agreement; that the Author's contribution has not been previously published, in whole or in part, except as the Author has advised AIBS in writing; and that the Author has used all reasonable care to ensure that all facts and statements in the contribution are true and that the contribution is not defamatory, obscene, or violative of any right of privacy, common law, or statutory copyright or other personal or property rights. The Author agrees to hold AIBS harmless and otherwise indemnify AIBS against all costs, expenses, and damages from any claim made against it arising from the Author's breach of the foregoing warranties and representations as sustained by a court of law."
BioScience's rights clause, on the other hand, er, needs some work.
CATHOLIC DIGEST, saying it is "experimenting with other media," asks authors of both original articles and pick-ups to turn over a parcel of rights. The monthly promises inadequate payment for some and nothing at all for others, and also tries to saddle the writer with an unreasonably burdensome indemnification clause.
But the editor tells Contracts Watch the magazine really needs only the right to publish in the print magazine, and "an author's reluctance to grant any other rights without negotiating separately would in no way influence our original decision to use the piece in CD." Rights and indemnification may be revisited but for now are flexible, the editor confirms, promising to "make that flexibility clearer in the material we send authors."
Publishers that call for all rights or work made for hire--typically single-sponsor or organizational magazines--commonly excuse the grab by saying they need assurance that the writer won't republish the work somewhere else. That's overkill: A publisher can assure itself of total exclusivity by writing a contract that prohibits reuse by the author while still providing payment for each use by the publisher.
In a recent deal worked out with ASJA's advice, a writer researching and writing a book for a major foundation declined a work made for hire contract. Instead, he arranged to keep copyright, promise not to use the work elsewhere without the foundation's permission, and license the foundation the right to publish the writing in a book and on the World Wide Web; any further use by the foundation is subject to negotiation.
Instead of souring writers with all-rights contracts, many magazines could follow the example.
A piece on writers' rights in a recent issue of The UNESCO Courier (http://www.unesco.org/courier/1999_01/uk/connex/intro2.htm) mentions the contract from the UK-based JANE'S DEFENCE MAGAZINES. The Jane's one-pager not only gives unlimited rights forever, but says the same retroactively about all previous works. (That last is a self-pardon provision that's seen occasionally on this side of the Atlantic too; the LOS ANGELES TIMES is one perpetrator. The only appropriate response: "You must be joking.")
A Jane's spokesperson is quoted as saying "So far no one has complained." Contracts Watch has heard from Jane's contributors who have indeed complained. "Everyone else is signing" is the oldest line in the publisher's arsenal. Rather audacious, though, to say it for publication.
PACE COMMUNICATIONS (publisher of Delta, United and US Airways inflights, among other magazines) has redone its basic contract. Applause to the company for recognizing that it's fair to pay extra for Web use and to have the fee cover a reasonable, limited time online. But it ain't just e-rights. Pace's contract gives the company much more than its editors say they want. A careful reading shows that writers who sign allow the publisher to do whatever it wants with a piece, in any medium, for four months--including making possibly lucrative reprint deals--and keep all the proceeds.
What's more, in an effort to answer past objections about the writer's liability, Pace has come up with a more elaborate warranty and indemnification. In a word, it's a loser, laying risks on the writer that should be borne by the publisher.
In the past, editors have negotiated away the bad parts of Pace contracts. It's too early to say if that flexibility will continue with the new-but-mostly-not-improved version or if a new rigidity means that freelancers will have to write Pace off the list of reasonable markets.
Meanwhile, HEMISPHERES, Pace's magazine for United Airlines, continues to try to get all rights forever for articles in certain categories that the publisher sees as having re-use potential (books, reprints, a TV series and the like). Pace and any writer who accepts should be ashamed.
Pace's new agreement also reflects an offensive mini-trend seen in contracts from some other publishers: the venue clause. The ending boilerplate says (acceptably) that the laws of the publisher's home state shall rule, but now adds (unacceptably) that the home courts shall have jurisdiction. In contracts where large sums of money are at stake, and where the parties are of roughly equal resources, that may be fair. But if an out-of-the-area writer wants to go after a publisher for, say, a missing fee, the modest size of the dispute means it's almost never worth the travel expense. In effect, the writer gives up all hope of ever enforcing the terms of the contract. No magazine that calls itself "writer-friendly" should use brute force to hamstring its contributors with such a restriction.
A tiny publisher of photographic books and other products has beaten the NATIONAL GEOGRAPHIC SOCIETY in a copyright infringement suit. National Geo had an illustrator copy, with only minor alterations, parts of underwater shots owned by veteran photographer Jerry Greenberg and his wife and publishing partner, Idaz. A federal district judge in Miami this month found "substantial similarity," granted summary judgment for the plaintiffs, and ordered a settlement meeting before opening a trial to set damages.
Earlier, the Greenbergs lost another part of their suit--concerning the controversial CD-ROM archive of National Geographic magazine (Contracts Watch, Dec. 23, 1997, http://www.asja.org/cw971223.htm). In that ruling, the judge cited the "Tasini" case now on appeal in New York City and granted summary judgment to the Society.
Neither side has said whether it will appeal its losing decision.
In Canada, class action seems to be the thing. A Toronto class action e-rights lawsuit against media giant THOMSON (the GLOBE AND MAIL et al.) and its INFORMATION ACCESS COMPANY unit, the database aggregator, is getting down to business. Notice has been published to the attention of any non-employees whose work was published in Canada during the past 20 years and included in an electronic product of the defendants and who did not assign copyright or license any electronic rights. All members of the class are covered by the action unless they opt out by contacting lawyers for the class, Kirk M. Baert, McGowan & Associates, Suite 405, 133 Richmond St. West, Toronto, Ontario, Canada M5H 2L3, tel 416-363-2035, fax 416-363-1875.
And last week a French-writing freelancers' group, l'Association des journalistes independants du Quebec (AJIQ), petitioned a superior court in Montreal for permission to proceed with a $30-million class action against 14 of the province's key newspapers and magazines and Cedrom-SNI, which produces article databases on CD-ROM and online. Only one of the group's original target publishers, QUEBEC SCIENCE, negotiated an agreement for ongoing royalties for electronic use of freelancers' articles. The others said, in effect, "We'll see you in court." Now, it appears, they will.
Within a TIME INC. stringer contract, after the give-us-everything language: "Time shall have no copyright in your concepts, research, or ideas expressed in the Work."
They might have added: "...because such things are not subject to copyright, so we're feigning restraint, but really, if we COULD claim copyright in your concepts, research, and ideas, believe us, we would."
As the Web mushrooms and search engines grow ever more extensive, freelance writers are turning up more and more unauthorized uses of their work--on personal hobby pages, on university student and faculty pages, on sites run by businesses large and small. But reports to Contracts Watch indicate that writers who use search engines to locate their work stolen on the Web are taking action more too. And they're finding a little policing and protecting often does the trick.
Many simply point out the infringement and accept an apology and a take-down. Others--particularly when the piracy is by a commercial site or is especially egregious--do more. One writer recently had to hire a lawyer to threaten and negotiate with an Internet business that had lifted big chunks of his own well-developed Website; the company ceased, desisted and paid $5,000.
Under a provision of the Digital Millennium Copyright Act, signed into law last October, Internet service providers can protect themselves from liability for infringement by site operators they host if they take certain steps. Among these, they must respond to a plausible complaint of copyright infringement by promptly taking down the offending material, at least until the accused infringer can make a reasonable counter-argument. So a complaint to the ISP involved can be a very effective step for writers to take to protect their copyrights.
The following report involves two publishers; both did the right thing.
An editor at CONTEXT, a business-and-technology magazine, granted a request from DOW JONES INTERACTIVE to post a freelancer's article on a DJI company-only Web page. Three days later, another Context editor noted that the magazine didn't own the rights and informed DJI. The writer finishes the story:
"Dow Jones not only took it off immediately, but also contacted me and offered to pay for a mistake that wasn't even theirs. I got a letter of apology and a $300 check, $100 for every day the story was up. Since it was an inside site, I would never have known of the infraction if they hadn't called me. It makes me think that there might be some reasonable people in the online publishing community after all, and it makes me all the more convinced of the need for freelancers to control their electronic rights."
[Note: This 63rd issue of Contracts Watch is the last produced for ASJA by Dan Carlinsky, former vice president for contracts. Norman Schreiber succeeds him.]
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Received on Mon Jun 28 1999 - 16:49:08 GMT
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