ASJA Contracts Watch 57

From: ASJA/Alexandra Owens <asja[_at_]>
Date: Thu, 9 Apr 1998 12:43:15 -0400

      <> <> <> <> <> <> <>

ASJA CONTRACTS WATCH 57 (vol 5, #3) CW980409 April 9, 1998


The AUTHORS REGISTRY, the not-for-profit licensing and payment clearinghouse, reports that since it began distributing money to authors for photocopy and electronic reproduction of their work, in the summer of 1996, it has paid out a total of $626,000. In 1997, its first full year of operation, the Registry funneled $441,000 to authors, and the pace of payouts is increasing, say Registry officials.

The Registry also reports that FOOD & WINE (AMERICAN EXPRESS PUBLISHING), WEIGHT WATCHERS and COOKING LIGHT (the last two from SOUTHERN PROGRESS/TIME INC.) have begun to make payments for article and recipe reuses under their 1997 contributors' contracts. But Cooking Light freelancers are confused by on-again, off-again news about the magazine. Earlier this year came a reversal of CL's fairly writer-friendly policies: a new contract that eliminates most of the extra pay for broad reuse privileges. Then, a few weeks ago, word was that the magazine was coming around, at least in part (Contracts Watch, Feb. 17, 1998). But the editor tells Contracts Watch that as of now, the new contract stands. As a freelance market, then, Cooking Light has lost quite a bit.

At THIS OLD HOUSE (TIME PUBLISHING VENTURES), the party line is that all freelance articles are works made for hire. The magazine promises extra fees for some later reuses, but writers give up copyright and the right to any reuses of their own. The party line, writers are told, is firm.

Not so: In one recent deal, TOH agreed to a license in which the fee covers just first publication; the writer retains copyright. Reuses by the publisher continue to call for extra fees, and immediately upon publication the author is free to recycle the work; the only restriction is on reprints to home products manufacturers.

Big marks on the downside?

  1. Free use of the article for promoting and advertising the magazine "without limitation as to time, form and number of uses." (The writer gives away what Madison Avenue copywriters charge for.)
  2. Those reuse fees are "based on applicable space rates as we have established for those products at the time of use." (In other words, the customer names the price.)

Freelancers who think agreeing to such terms is not the way to business success will continue to stay away from TOH. But it's revealing that at This Old House, where contracts are presented as carved in stone, alterations are possible.

Another in the not-always-so-rigid category is the ATLANTA JOURNAL-CONSTITUTION. The usual demand is for the right to use an article "in other Cox Newspaper compilations," plus Internet and electronic database rights, plus reprint rights in all media.

That contract, despite editors' denials, is sometimes replaced by a form that covers only first publication in print, "for one-time use only," and the right to "keep copies of your work for archival purposes only," which means the newspaper's electronic morgue.

According to a source in the paper's library, the AJC's internal archive contains everything published; the archive that is fed to Lexis-Nexis and other database compilers is stripped of wire service and syndicate material and articles by freelancers who haven't signed a contract specifically licensing online use. "We're very careful about what we put online," says the source. "Unlike some newspapers, we use only what we have rights to."

CMP MEDIA, which covers the computer world with HOME PC, INFORMATION WEEK and other publications, has a new, long-term, one-size-fits-all "Freelance Supplier Agreement" for writers, photographers and illustrators. A corporate-crafted cover letter crows, "Under this agreement, you will retain copyright to all the material that you submit; this is NOT a work-for-hire agreement." But the new contract demands a gaggle of rights, covering perpetual reuses, for a single fee. CMP misses the key rights issue for freelancers in a time of increasing recycling of published "content": If it's used more than once, the author should be paid more than once; a lump fee doesn't do it.

The new CMP contract also contains an offensive kill fee provision: the editor may call for an unlimited number of rewrites and may kill a piece for any reason; the amount of the kill fee, if any, is at the editor's sole discretion. Even one highly placed CMP editor calls that clause "absurd."

(A detailed memo on CMP's standard contract is available from ASJA.)

While some editors are enforcing the company order with a heavy hand, writers for at least one CMP unit have the option of an alternative, superseding contract. Its terms are a little better in one respect (the kill fee), yet far worse in another (the rights clause). Word is that in that corner of the company, at least, editors may change key parts of the second contract to keep freelancers happy. Still, Contracts Watch hasn't heard of a deal struck that shows CMP as a good place for a freelancer to do business.

A longtime PENTHOUSE regular has called it quits because the publisher apparently can't control its appetite.

Penthouse's mistitled "First Periodical Rights" agreement actually covers a long list of rights, offering pay for some of them but not for others. One of the chief sticking points was the magazine's insistence that its initial fee cover unlimited uses in any editions of Penthouse that may ever exist in the world, as well as TV and movie rights and all types of electronic rights forever. The writer offered to allocate parts of the fee to different rights. Penthouse said no.  

Expressing regret over leaving a section editor who "is a joy to work with, a sensitive and careful editor," the writer nonetheless told Penthouse in a letter that "My proposal to you would have confirmed my ownership of these rights without costing you a penny, but you also are interested in establishing a precedent of ownership. And that I cannot accept."

The editor replied that Penthouse wouldn't agree because it too wished to establish a precedent on ownership of electronic rights.

Points to Penthouse for frankness about the head butting: The magazine doesn't like the idea of freelancers keeping their property rights, and isn't afraid to say so. Penthouse has long tried to bully freelancers by sending with each assignment a cover note that warns against changing a word of the agreement. The threat is somewhat hollow; editors have been known to accept minor changes in terms, although, as the now ex-regular's case indicates, changes that give the contributor something worth writing home about are hard to come by.

In a situation similar to the continuing NATIONAL GEOGRAPHIC dispute (Contracts Watch, May 6, May 27 and Dec. 23, 1997; Feb. 17, 1998), HEAVY METAL ("The Illustrated Fantasy Magazine") has dropped its plan to peddle a 20-year back-issue collection on CD-ROM. The retreat came after weeks of sometimes heated dialog with contributors who objected.

Jean-Marc Lofficier, whose Starwatcher Graphics represents the artist Moebius, a key contributor to Heavy Metal, told Contracts Watch that regardless of the outcome of pending litigation in the U.S. (in which an appeals court may rule whether such CD-ROMs require permission of the authors), much of the material was originally published in a French magazine that had only print rights. "Under French law," he said, "print rights do not include electronic rights, so they couldn't have licensed more than that to the U.S. magazine."

Heavy Metal's vice president, Howard Jurofsky, told Contracts Watch some 50 sets had been sold at $200 each, but distribution now was halted, adding: "I still think we were in the right, but if there's too much backlash from creative people, it's not worth it. We ceased and desisted."

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.

YOU CAN RECEIVE each edition by e-mail automatically (and at no charge). Only official dispatches: no feedback, no flooded mailbox. Send the following message:

                      To: ASJA-MANAGER[_at_]SILVERQUICK.COM
                 Subject: CONTRACTS WATCH
           Complete Text: JOIN ASJACW-LIST

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 MEMBER AND OTHERS who send contracts, information and scuttlebutt: Thanks. Inquiries from all are welcome.

     Contracts Committee, ASJA
     1501 Broadway, New York, NY 10036
     tel 212-997-0947
     fax 212-768-7414
     e-mail ASJA[_at_]
     Web page
Received on Thu Apr 09 1998 - 16:46:14 GMT

This archive was generated by hypermail 2.2.0 : Mon Mar 26 2007 - 00:35:29 GMT