The Writers Club
A Library of Creative Writing
ASJA CONTRACTS WATCH 55
(vol 5, #1) CW980126 January 26, 1998
News of
NORTHERN LIGHT,
COASTAL LIVING,
SWING,
WEIDER,
WORLD PUBLICATIONS,
HACHETTE FILIPACCHI,
NATURAL HISTORY
and more...
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Internet newsgroups and e-mail lists for journalists have been buzzing about the new kid on the database block: the World Wide Web-based NORTHERN LIGHT (http://www.nlsearch.com), which locates information on other Websites (mostly free) and in its own "Special Collection" ($1 to $4 a text for 2 million articles from 3,000 popular and specialized periodicals and books).
For its article collection, Northern Light, like other electronic reprint retailers, arranges royalty deals with publishers and with database aggregators that have made deals with publishers for use of "their" content. The problem, freelancers say, is that publishers don't always own the rights they've sublicensed.
Writers who have contacted Northern Light to voice their objection have been told to go to their publishers. "We're indemnified," says Northern Light. But that stock response doesn't tell all. If a publisher is exceeding the terms of its license, the writer does have a case against the publisher--for breach of contract. But the writer may still charge others in the chain with copyright infringement. A publisher's indemnification doesn't let the others off the hook.
*****
COASTAL LIVING, the lifestyle magazine for shore lovers launched last spring by SOUTHERN PROGRESS (a Time Inc. subsidiary), has signed with the AUTHORS REGISTRY, the not-for-profit licensing and payment clearinghouse for writers. The bimonthly, with a rate base of 350,000, joins publications such as COOKING LIGHT, FOOD & WINE, HARPER'S, TECHNOLOGY REVIEW, TRAVEL & LEISURE, WEIGHT WATCHERS AND YANKEE in committing to use the Registry's services to pay authors fees and royalties for electronic, photocopy and other reuses of their work.
*****
The contract from SWING, which aims at the 20-ish set, is mostly lifted word-for-word from the basic Conde Nast contract, no freelancer's choice as a model of fairness. But Swing, a writer reports, will bump the kill fee from a quarter to a third and kill a shopping list of extra electronic and print rights, leaving reuse rights to be acquired by negotiation as needed.
*****
Nearly a year ago, noting growing resistance to its contract demands, executives and editors at WEIDER PUBLICATIONS (FLEX, LIVING FIT, MEN'S FITNESS, SHAPE et al.) met with a gathering of freelancers. A revised article agreement was promised and a quiet truce called. Since then, writers and their editors have been free to alter the offensive parts of the contract while the revision was in the works. The contract is for work made for hire, under which the writer gives up everything, becoming no more than an office temp. But with a truce in effect, writers could negotiate to license just one-time use. The particularly vicious indemnification clause could be modified or knocked out on request. A good-faith effort seemed underway. Writers had cause to be optimistic.
But things have changed. New word from Weider is: The printed contract is our only offer; take it or leave it. A Weider official tells Contracts Watch a revised contract is still "coming soon," but until then, "alterations are not acceptable."
Weider is offering some (but only some) writers a fee increase of 20 percent as an inducement to sign. Given the potential for milking and re-milking of articles--a potential that Weider is positioning itself to make real--a buyout for such a low premium is smart business for Weider but sadly short-sighted for writers.
*****
On the other hand, a truce continues at WORLD PUBLICATIONS (BOATING LIFE, CARIBBEAN TRAVEL & LIFE, MARLIN, WATERSKI and others). Last year, the company met with resistance and started losing writers over a new contract that demanded too much. Editors' recommendations for a new look at things have been with management for several months, but a promised new contract is still pending. Meanwhile, at least some editors are making assignments with a simple letter, acquiring what one describes as "one-time use in one issue of the magazine."
*****
HACHETTE FILIPACCHI magazines have quietly added another claim of rights to their contracts. The word "audiotape" has been dropped into the magazines' usual list of microfilm, microfiche and broad electronic rights, escaping the notice of even some contract-cautious regulars.
Hachette editors routinely try to get the whole bundle of extra rights without paying more, but they're authorized to offer some cash to writers who won't say yes. Unfortunately, the company insists that the extra payment for nonprint rights be a one-time fee to cover any number of Web, CD-ROM, database and, now, audiotape uses; no narrowing of rights, no time limits. But editors at some Hachette magazines, including EATING WELL and WOMAN'S DAY, have recently satisfied writers by striking everything on the list but microfilm and microfiche. Until the publisher pays per use, and on a continuing basis for continuing online use, that's a fine solution.
*****
Not long ago, another magazine subtly changed a few key words in its usual agreement letter, turning its longstanding decent contract into an all-rights deal. The staffer in charge of mailing paperwork thought that was a little sneaky, so contracts started going out with a yellow gummed note stuck to the page, a bold arrow pointing to the new language.
Since there aren't kind souls like that at every magazine, even if the contract looks just like the one from last year, or last week, writers ought to read--and be sure they understand--every word.
*****
Contracts Watch has received a copy of the payment requisition form used by editors at NATURAL HISTORY. Before requesting payee's name and address and such, the form tells editors a few things:
"An agreement should be reached with all contributors to our magazine, in advance of publication of their work, that the payment that they receive constitutes full payment....
"For authors, the outright sale and delivery of a manuscript, and acceptance by him/her of a sum of money `in full payment thereof' is regarded as carrying all rights incident to ownership, including the right of the purchaser...to secure copyright as proprietor....
"Fo photographers, the standard agreement conveys to the purchaser the one time right to reproduce their work in a publication...."
As Contracts Watch has happily reported, Natural History doesn't stick to its boilerplate for articles. It first seeks all rights but, according to reports, will negotiate far more reasonable terms. At Natural History, it appears, writers are Class B contributors who must spend time and effort to get what photographers are dealt as a matter of course.
*****
Some publishers' contracts promise, as payment for certain secondary rights if they're ever exercised, "our prevailing reuse fee at the time." While it's good to be paid for extra uses of an article, it's not good business to give an option and let the customer name the price. (Contracts Watch has a similar offer to make: We'd like a free option to buy your car if and when we choose, at any time we want, at whatever price we name. Please sign and return the contract. Quick. Before you think about it.)
One way to fix such a clause is to say "for a fee to be negotiated." Another is to negotiate a price and write it into the contract. Still another is to kill the clause and leave the rights with the writer.
* * * * * * * *
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