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Writers Can Learn about Pubublishing Contracts and Agreements

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Verbal Agreements vs. Written Contracts - What's Legal
Want your Money? You can collect on a verbal agreement just as easily as on a contract. If they didn't pay you can turn it over to a collection agency, or take the client to either small claims or municipal court. When you begin pursuing payment with the client, the first thing to do is to remind the client of your agreement and note that even though it isn't a written contract, it is legally binding. Notify the client of this in writing.

The following agreements must always be in writing to be valid:

What is The marketplace is a website which allows sellers of publishing properties to display their properties for potential buyers and list available rights and desired terms of sale. Buyers have the use of a searchable pool of properties to browse and bid on for purchase. Unique to, our website is a fully transactional rights exchange where buyers and sellers complete rights deals online.


vol. 11, #1: published by The American Society Of Journalists And Authors May 3, 2004 - Contents:

* Enlightened self-interest
* Picture imperfect
* Changing changes
* Showing how rights pay
* A hint from a publishing lawyer
* Contract-savvy speakers available

Enlightened self-interest

We have long heard magazine and book authors speak enviously of screenwriters. The group organized decades ago as the Writers Guild of America (with the East division focusing on stage and the West on movies and broadcast). Through collective bargaining, they have apparently managed to maintain their rights while winning reasonable income, benefits, and the freedom of independent status. In short - they seemed to have managed a sweet deal, leaving many print people feeling bitter. The key word, though, is apparently. It seems that the screenwriters are paid as employees, effectively working as temporary employees on a per-project basis, and even sign away copyright, although they are guaranteed a schedule of fees for reuse of a script and have certain rights transferred back to them. It is not quite the sweet deal that most print writers have envisioned.

Why talk about a union of employees? Because sometimes we can all benefit by examining related fields. The screenwriters by and large have not focused on their rights; instead, they were practical and looked towards their financial interests. It is all too easy to become a crusading activist - demanding the retention of all rights while insisting on higher pay and avoiding onerous requirements - who walks away from every deal because it isn't "pure" enough. Don't get us wrong: we at CW cringe when writers blithely sign away rights, agree to ridiculous demands, and all with at most a quiet whimper. If you are going to be a self-employed writer, you must pay attention to the contracts in front of you and actively demand changes when the documentis in your worst interest.

Rights and contract negotiations are important only because they protect a writer's interests. So, it might make sense to allow a publisher to non-exclusively syndicate a piece or sell reprints - if and only if the writer gets a reasonable cut of the proceeds. And if the publisher wants exclusive rights? Well, we could manage that . with a higher cut of the revenue, or some other consideration like, be still our beating hearts, quick payments. Buy the copyright? That might be possible with a fee beyond the wildest dreams of avarice.

By thinking of your interest instead of your rights, you take a more mature and intelligent stand in your negotiations. There are no mandates other than those prompted by careful contract reading and interpretation by common sense. You can then use the tactic of smart negotiators - like publishers' lawyers - who apparently give something while leaving themselves an out.

For example, we have been greatly irritated by magazines demanding credit as the original publisher when we resell an article. At first it's galling: why share credit with an entity whose major writing contribution is usually a signature on the check? But when enlightened self-interest takes hold, we realize that we can fix the problem by smart negotiating so that we only promise to make efforts to gain credit. After all, the real concern of the writer is that effectively asking to promote another publication might kill a potential resale. With the alteration, the writer can make the sale and only then ask for the credit line. If the new publisher is willing, what harm does it do? If unwilling, the writer tried and can still take the assignment.

There is no magic bullet - whether it is the "location, location, location" of the entertainment industry or the "rights, rights, rights"
of publishing. By working hard and focusing on self interest, however, writers can slowly and surely look out for what contracts really say and look out for themselves as well.

Picture imperfect

By now, readers of CW might have heard of the latest New York Times negotiation travesty - this time with freelance photographers. This paper of obviously financial record is offering a Work Made for Hire agreement while paying a pittance. (The $150 fee for a day of work is a ok in Boise, let alone Manhattan.) Mileage? Certainly - what the Times decides is appropriate. Expenses? Certainly - if offered in the format the Times demands but does not describe. If WMFH doesn't hold up, then the photographers must offer joint copyright ownership. Ultimately, the photographers starve and, in the best of circumstances, find themselves in competition with the paper, as well as any other organizations to which the Times has licensed the images. And the photographers are embargoed from even remarketing images not used by the Times (when they can) for some period until after the paper has used the ones it has chosen.

We really don't understand how the New York Times is called "liberal" when its policies are so draconian and regressive as to appear reactionary even to a conservative business view of the world. Given the dismissive and arrogant "take it or leave it" attitude with pathetic levels of pay, we don't understand why any photographer or writer would bother to work for them. Yes, it's a name publication, and if you really need the clip (and from what we've seen, there are equally prestigious clips that don't require kissing a corporate back end), get it and move on. Obviously the recent ethical travails of the paper aren't enough to convince management that reasonable pay for experienced professional talent is a wise investment.

Changing changes

Recently we heard from two writers who had conscientiously read their contracts, negotiated changes to maintain their rights, and appropriately modified their contracts. Both duly initialed their changes and received countersigned copies. And neither one could see initials from a representative of the publisher next to those changes.

Years after - yes, contracts last a long time - each one had a problem. One writer wanted to resell a piece and wasn't sure if changing a term from work made for hire to non-exclusive allowed him to without the initialed acknowledgment. The other writer found that the publication - Salon - had resold an essay. The unmodified contract would have offered 25% of the original fee to the writer; the changed version forbade any sublicensing on the Web publication's part.

Without the counter-initialed copies, could the writers take advantage of the changes? According to the ASJA's legal committee, they could. By making changes to the contract and - this is vital - keeping a copy of what they signed and returned, the writers formally declined the offer from the publishers and made a counter offer. The publications could have refused the changes by informing the writers. But by signing and returning the modified document, the publications had accepted the new deal. (Mind you, this worked because the writers received unsigned contracts, which they modified. Had an editor signed the copy before sending it on, then the changes could not have been reviewed by the publisher and likely would not hold up in court.)

Furthermore, even if the writers had never received countersigned copies, things would be far from bleak. The minute an article appears in print or online without a signed contract returned, it is legally reasonable for the writers to assume that the proffered counter-offer is the one controlling the deal. Although not guaranteed, it's likely that a court would agree. So make those changes and send in the marked-up contracts while keeping a copy. You might get a refusal, in which case you then must decide how to proceed. Or you might find yourself in a very strong position - whether someone bothered to read and sign what you sent in or not.

Showing how rights pay

At the latest ASJA conference, and through private communications, we've again heard from writers who are certain that it makes sense to sell off rights for pieces that they think cannot possibly find another market. we beg to differ.

Time and again, writers have seen how content can be repackaged, repurposed, and resold, creating incremental money for those who are exploiting the rights. Think that a feature is too tied to a particular locale to be of interest anywhere else? Take a look at the online city and travel guides that need a constant stream of relevant material to draw audiences and attract advertisers. Is a book review too insignificant? Perhaps it will appear at an online retailer. Publishers ask for rights because they expect to make money; cheer them on while reaching out for your cut.

A hint from a publishing lawyer

A member of the CW staff appeared on a panel at the National Association of Science Writers conference. The other panelist was a publishing lawyer, who made a number of observations. One was that even if editors cannot make changes to the language in a contract, they may be allowed to add a clause. In that case, there is a wonderful legal term called "notwithstanding". The rough translation is, "even though we have agreed to things in the rest of the contract, we're going to turn parts over and do something different." So if the publication is grabbing rights down to the naming of your firstborn and you can add a clause, you could say something to the effect of "notwithstanding the above, the writer is going to keep the following rights," and then list what you keep. Focus on what you need and what you will actually use, and you might just find yourself walking away with a highly improved document.

The American Society of Journalists and Authors encourages reproduction and distribution of this document for the benefit of freelance writers and photographers, and other publishing content creators. Reprint or post as many items as you wish, but please credit ASJA for the information and don't change the content.

Thanks to Editorial Photographers (EP - for periodic information on photographers' contract issues and the Graphic Artists Guild (GAG - for information about illustrators and contracts.

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