ASJA News

44

October 22, 1996

ASJA CONTRACTS WATCH CW961015 Issued October 15, 1996

[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.]

In August 1995, THE NEW YORK TIMES said that freelance writers
would have to give up their copyright and all other rights to be
published in the newspaper. The harsh edict, accompanying a new
"work-made-for-hire" contract, provoked unprecedented slings and
arrows directed at the Times. Several major writers' groups and
hundreds of individuals, including some of the nation's best
known bylines, denounced the Times for bullying writers. Many
flatly stopped considering the Times a market for their work.

Fourteen months later, how is the reviled contract doing? At
Travel, Arts & Leisure, the Magazine, the Book Review, Living
and Op Ed, somewhat less onerous contracts either are the first
offer or are available on demand. At other sections, like
Business and Real Estate, whose editors apparently have less
sway with management, the Times still tries to force the
notorious contract of '95. But Contracts Watch has heard from
regulars who continue to ignore the demand and are still writing
for the paper with no formal agreement at all.

For many writers, the "less onerous" contracts aren't acceptable
either, because while they don't take all, they typically give
the Times 100 percent of lucrative database income forever and
allow the New York Times News Service to offer a work to its 650
clients without a penny extra going to the writer. As one
business writer put it, "They want writers sophisticated enough
to do a complicated economics story but unsophisticated enough
to sign away all their rights."

LADIES' HOME JOURNAL continues to send all-rights contracts
to see how many writers will take the bait. The magazine's
"other contract" is labeled "Exclusive First North American
Serial Rights" but tosses in all-media rights and promotional
rights as well. Editors accept cross-outs on both and addition
of the word "print" in FNASR, leaving a simple, acceptable
contract.

SCIENCE is promising to improve. In a recent letter to regular
contributors, the magazine's top editor says: "With the
likelihood that your work for the print magazine may now yield
us further revenues that we can track precisely to their source,
we not only plan to share such revenues with you, but our
Business Manager is busily revising the contracts you have been
signing to fulfill a pledge to you. We promised that as we got
deeper into the electronic age, we would continue to improve our
contracts according to industry standards."

MicroTimes devotes two pages in its September 16 issue to
"Authors Rights: On Getting Paid in the Age of Digital
Reproduction." The bulk of the piece tells how the AUTHORS
REGISTRY helps publishers share revenues from electronic
republishing with freelancers. Author Anna Couey explains:
"Although publishing on the Internet is a relatively new and
economically ambiguous phenomenon, electronic redistribution of
published articles is not--proprietary online databases, CD-ROM
databases and commercial online services, such as America
Online, provide direct revenue streams to publishers for their
articles...." When publishers complained about the hassles of
sharing that stream, she says, writers' groups formed the
Registry to do most of the work for them. The $150,000 in first
royalties the Registry recently mailed to several hundred
authors is "only the tip of the iceberg."

The Micro Times article is available on the World Wide Web at
http://www.microtimes.com/155/authorsrights.html

A federal appeals court has told MICROSOFT to stop eating its
cake and having it too. By a two-to-one vote in a case brought
by eight current and past freelancers, the Ninth Circuit Court
of Appeals, in San Francisco, ordered the software giant to pay
employee benefits to hundreds of workers it had been classifying
as independent contractors. The majority opinion criticized
large corporations that use temps and freelancers "as a means of
avoiding payment of employee benefits, and thereby increasing
their profits." Microsoft said it will appeal.

To freelance writers, the trick is nothing new. Some major
newspapers have been reported under IRS investigation for using
such maneuvers. And many newspaper and magazine publishers try
to have it both ways with freelance writers: For purposes of
taxes and benefits, treat them like independent contractors; for
purposes of rights, treat them like employees by taking all
rights to their work. (See New York Times item above.)

In a new, related contract trend, some publishers come
dangerously close to looking into freelancers' bedrooms.
Simon & Schuster's boilerplate says the author may not
work on another book until the one covered by the contract is
done. A Conde Nast columnist agreement would let the editor
decide if the freelancer may do a book--on any subject--while
under contract to the magazine. These publishers try to manage
not just the results of contracted work but how it's performed,
a privilege ordinarily found only in the employer-employee
relationship. Savvy writers draw a neat line through such
clauses.

The U.S. Senate bill that would have merged the Copyright Office
with the Patent and Trademark Office died as the 104th Congress
closed shop. Authors' voices were loudest among the opponents of
the bill, who included publishers, librarians and others
concerned that in a new intellectual property superagency
copyright would get the short end of the stick.

The Periodical Writers Association of Canada reports that
CANADIAN LIVING is asking writers for a year's electronic rights
to previously published articles, offering 5 percent of the
original fee. Meantime, the magazine's parent, TELEMEDIA, is
still considering how to handle e-rights payments in new
contracts. PWAC says it has heard of writers talking the CL
offer up to 15 percent. Still, the group recommends saying no in
anticipation of a company-wide policy to come.

In Europe, unlike in the US, staff writers typically retain some
rights in their work. Thus, according to a report from the
London Freelance Branch of the National Union of Journalists
(UK), the Belgian journalists' union is suing newspaper owners
over electronic re-use of members' work. The action stems from
the launching of an online database service by a coalition of
newspaper publishers.

Many ASJA members and others send a steady stream of contracts,
information and scuttlebutt so that these ASJA Contracts Watch
dispatches can be as informative as possible. Thanks to all.

ASJA CONTRACTS WATCH (Previous Posting)

[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.]

The American Society of Journalists and Authors reports that more publishers are
complying with freelance writer's demands to be paid for electronic usages.

When Atlantic Monthly settled its part of the still-active federal lawsuit
against the New York Times and others for continuing digital reuse of articles
without the authors' consent, the publisher said it would negotiate electronic
rights in the future. That's just what it's doing.

In recent transactions negotiated in consultation with ASJA, writers for both
Atlantic and baby sister Fast Company reduced contract demands to first use
only. The several other rights listed in the original contracts -- including
electronic database use, the subject of the lawsuit -- were deleted on request
at both magazines. In a Fast Company agreement, the writer specified World Wide
Web rights for an extra fee.

Harpers Magazine has agreed to split royalties with writers. General manager
Jeanne Dubi said, "In the past several months, since we changed our contract and
started sharing income through the Authors Registry, we've been able to acquire
electronic rights for every original piece in the magazine. We seem to have
gotten rid of a big headache."

Sometimes it takes a lot of negotiations and even going to small claims court,
but more and more publications are settling with writers for e-rights
violations. The latest include: Weight Watchers, Marketing Computers, Consumers
Digest, Newsweek, Paragon Publishing (UK), Vegetarian Times (Cowles), the
Washington Post, Publishers Weekly and The Nation.

Authors Registry

The Authors Registry announced that it has begun mailing the first of more than
$150,000 worth of royalty checks to hundreds of writers around the country.
These royalties cover payments for photocopy and electronic use of their work.
The money is the first collected and passed on by the new nonprofit agency,
which boasts the cooperation of 30 writer's groups and 95 literary agencies. It
is working directly with publishers, database compilers and others in the
secondary market.

Dan Carlinsky, a spokesman for the Authors Registry, told Legal Times reporter
Carrie Johnson, "What we've done in creating the Registry is to make it doable
for publishers who want to do the right thing; and for those who don't, we take
away their excuse."