Re: bad contracts

Subject: Re: bad contracts
From: Buck & Tilly Buchanan <writer -at- DHC -dot- NET>
Date: Tue, 6 May 1997 14:14:56 -0500

Here's a message that is typical of the periodic advisories from ASJA.
It might give subscribers some ideas into how it's done in another

Eric: I regret that it's so long, but it seems to be relevant to the
discussion and the originator says don't change it.

> ASJA CONTRACTS WATCH 45 (vol 4, #6) CW970506 May 6, 1997
> [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.]
> *****
> NATIONAL GEOGRAPHIC has several CD-ROM projects in the works for this
> fall. But the one that's causing a growing buzz among freelance
> writers and photographers is not just any little project. It's the
> plan to put onto disk every page of every issue from the magazine's
> century-plus history. Some contributors have suggested that Geographic
> divide a piece of each year's gross among freelancers involved and
> make royalty payments through the Authors Registry. At least some
> staff is said to like the idea, but rumors persist that the magazine
> is considering a twist on the U.S. military approach: Don't ask, don't
> pay.
> Larry Lux, senior vice president and managing director of National
> Geographic Interactive, told Contracts Watch: "Corporate counsel and
> our rights staff are wading through our contracts database, trying to
> figure out the situation. Over so many years, with so many variations
> of contracts, it's very complicated."
> Some Geographic contributors have routinely turned over copyright,
> then gotten it back after publication. Others never signed away more
> than one-time rights. Photographers and writers who have been
> published in the magazine would do well to dig out their old paperwork
> and, unless they let their rights go, alert the staff.
> *****
> AMERICAN AIRLINES PUBLISHING, which produces inflights for American
> and Southwest airlines, has been asking for the right to use recent
> freelance pieces in an about-to-launch online magazine, TravelWeb. The
> offer is for 10 percent of the fee originally paid for one-time
> magazine rights. Paperwork being faxed to writers puts no time limit
> on the online use, but TravelWeb's editors say it's OK to change to a
> one-year license with an option to renew.
> That's as it should be. With permanent archive rights for a Website,
> the publisher can sell ads this week and more next week, and keep on
> selling while the writer sits with a single fee. In any flat-fee
> agreement for online rights, the money should buy use for only a
> limited time.
> *****
> A freelance writer was surprised to find an article of his from a
> defunct regional golf magazine in the archive on the Webzine GOLF.COM;
> he had never given consent. He invoiced the amount he had
> first been paid for the piece, plus $200 "for my time and trouble."
> Fortunately, the writer had followed ASJA's advice to register his
> articles with the U.S. Copyright Office. So when a response was too
> slow in coming, he shot off a copy of his registration certificate, a
> signal to a savvy defense lawyer that there could be stiff statutory
> damages and the writer's lawyers' fees to worry about.
> paid in full.
> "Copyright registration was a most useful hammer to wield," the
> freelancer says. "Every writer should register every article." (For
> information about registering, see "Copyright Registration for
> Freelance Writers," downloadable at or,
> for a self-addressed stamped envelope, from the ASJA office.)
> *****
> In Canada, another class action lawsuit against a major newspaper
> chain for theft of e-rights may be in the works. On the heels of the
> suit begun last year against the giant THOMSON NEWSPAPERS, a group of
> 17 MONTREAL GAZETTE freelancers has asked Quebec Superior Court for
> authorization to launch a $33-million action against SOUTHAM INC.,
> publisher of the Gazette and 30 other Canadian dailies. The
> freelancers argue that although they sold one-time print publication
> only, Southam contracted with Infomart, a pay-per-use online database,
> to sell electronic reprints without their consent.
> In the U.S., where class action litigation is tougher to come by, the
> class action route hasn't yet been tried. A regular federal case
> brought by several freelancers in 1993 is still pending in district
> court in New York City.
> *****
> Meantime, also from Canada: A freelancer who discovered an article of
> his on a CD-ROM from the HALIFAX HERALD invoiced the company for 50
> percent of his fee. "It's not our policy to pay," the company said.
> "It's my policy to charge," the writer replied, noting that he had
> never signed the publisher's rights-grabbing contract. Last month,
> with a final volley that "it appears you did not realize that your
> arrangements with the Herald provided the Herald with electronic as
> well as print rights," the newspaper paid the bill.
> *****
> After nearly a year under the banner of MacDONALD COMMUNICATIONS, MS.
> continues to offer a complex agreement letter that doesn't match owner
> Jay MacDonald's pledge to do better. Shortly after buying the remnants
> of Lang Communications (also including WORKING MOTHER and WORKING
> WOMAN), MacDonald told Contracts Watch: "We will have a new contract
> with the creative community that ensures separate compensation over
> and above one-time print use in whatever aftermarket a contribution is
> used, including other media we plan to develop." Pointing to that
> statement, writers have pared the MS. contract back to first print
> use; amended agreements have been accepted. Meantime, the fair new
> contract promised is, it seems, still under construction.
> *****
> Some recent deals reported to Contracts Watch (details, including
> negotiated improvements not cited here, on request):
> + At MAINE ANTIQUE DIGEST, a writer negotiated an extra fee of 30
> percent for a year's Web use.
> + For the asking, PARENTLIFE, a Southern Baptist Convention
> publication, quickly replaced its work-made-for-hire article contract
> ("Form Wr1") with a simple first rights agreement ("Form Wr3").
> QUARTERLY, turned its all-rights offer into first North American
> rights with an extra 10 percent for a year's use on the association's
> Web site.
> *****
> Contract Watch's nominee for Publishing Executive Least Likely to Land
> a Job With the Diplomatic Corps: Charles Kaiser, managing editor of
> the WASHINGTON POST. In a cover story ("Words for Hire? Publishers and
> Freelance Writers Grapple With Content Ownership in an Online Age") by
> Rosalind C. Truitt in the April issue of Presstime, the magazine of
> the Newspaper Association of America, Kaiser is quoted as sniping at
> freelancers who resist the Post's rights grab: "If writers decline to
> have stories posted, we can't force them to write, but I have to
> remind people that writing for the Washington Post is not a right. It
> is a privilege."
> A related quote worth quoting comes from legendary Hollywood producer
> Irving Thalberg, via screenwriter Julius Epstein, via Katharine Q.
> Seelye in the New York Times. Sellye quotes Epstein quoting Thalberg
> (got that?) as saying that writers are the most important people in
> film, "and we must do everything to keep them from finding out."
> * * * * * * * *
> Many ASJA members and others send a stream of contracts, information
> and scuttlebutt so that these dispatches can be as informative as
> possible. Thanks to all.
> To receive each edition automatically (and at no charge) by e-mail,
> send the following message:
> Complete Text: JOIN ASJACW-LIST
> Only official dispatches: no feedback, no flooded mailbox.
> *****
> Check Before You Sign
> A complete, searchable archive of ASJA Contracts Watch is available
> on the World Wide Web. Find it--with other valuable information and
> tips on freelance contracts, electronic rights and copyright--at the
> Web address below.
> *****
> Inquiries and information 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- compuserve -dot- com
> Web page

If you eat alone, there's no one there to do the heimlich!

Buck Buchanan
writer -at- dhc -dot- net
Arlington, TX

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