Contract Woes: Rights at Risk

Contract Woes: Rights at Risk

by Karen Bennett
copyright © 1999 Karen Bennett

In January, I was called to do a review for the new Schwann Spectrum, a recently restarted quarterly. I was considered for the features editor position for this publication; the job went to Dan Ouellette, who kindly asked me to write for the book. The agreed-upon rate was 30 cents a word. I did a $100 CD review. Dan later sent out a mailing saying that the company had originally wanted to pay the contributors 20 cents a word, but he had negotiated for the increase to compensate writers for their online rights, which Schwann would be assuming. He also told us that the Schwann contract would be in the mail to writers soon.

The contract arrived a few weeks after the work had been submitted for the January 20 deadline. When I read the rights granted clause, I was dismayed, to say the least. Here it is:

3. Rights Granted. You hereby assign to the Company all rights (including all copyrights) in and to all Editorial delivered to, and accepted by, the Company for any and all purposes, in any and all languages and any and all media, whether now existing or later devised, throughout the world. The Company's rights to the Editorial includes the right to edit any Editorial at its discretion, and will extend to all or any part of each Editorial and to any work derived or compiled from parts of any Editorial. In addition, you grant the Company the right to use your name, photograph, likeness and biographical information in connection with the publication of the Editorial and for promotional purposes. At the Company's request and expense, you will execute and deliver any copyright applications, assignments, and other documents it deems appropriate to obtain and enforce for its rights under this letter of agreement.

This did not sit well with me. I consulted with a copyright attorney in Philadelphia, who happens to be a friend of mine, and who is incredibly gracious with her time and formidable knowledge of the law. I told her that I did not like these terms, and that I felt it was remiss of the company to send the contract after work had been delivered. She said that I could revise the clause, initial it, sign the contract, and see if the company agreed. I did not think they would, but I gave it a shot. Here are my revisions:

** Rights Granted: The author assigns to the Company one-time rights to Editorial, plus online rights. Copyright remains the property of the author. Company must obtain author's permission before using Editorial, excerpts thereof, or author's name, likeness, biographical information or photograph for promotional purposes.

I sent the contract in with these revisions, and also included a note that I expected to be paid in full for the work I'd done in good faith, in the absence of a contract. I stated that I did not want to work for Schwann under the terms of their contract. I did not think that 30 cents a word provided justifiable compensation for ceding one's copyright into perpetuity. Schwann did not go for my revisions. I have been assured that I will be paid in full for my one review, and that if I change my mind about my position, I can write for the company again.

I don't know how many other writers contributed to the first issue, but I do know that I was the sole holdout on the contract. It seems instructive at this point to recount a similar situation that arose about five or so years ago involving Musician magazine. Musician (recently folded, sad to say) bought first rights only. I wrote for the magazine for 11 years, and felt that by and large they paid promptly and fairly. In fact, once one's tenure had been established, Musician paid ON ACCEPTANCE (take note, music mag publishers everywhere). But a letter was sent to contributors several years ago which attempted to change the policy and appropriate our reprint rights. Chuck Young wrote an absolutely scathing letter denouncing this intended change to the head of BPI, which owns Musician. Most of the contributing editors banded together and supported Chuck's initiative. We did not sign the new contract. As a result, the record review section was exempted from the new policy, and I'm not sure what happened to the rest of the crusade; most of us did not write for the front of the book after that. Due to the fact that the writers united, the policy was more or less defeated.

I am not passing judgment on the writers who found the Schwann contract acceptable. Each person has to decide for him/herself what is more important. If the opportunity to make the money now outweighs copyright concerns, so be it. But there's also no turning back once that contract is signed. I wrote to the editor in chief, Becky Barnhart, who obviously does not institute company policy, and told her I saw no reason why writers cannot be given some remuneration for reprints of their work, even if the company was still taking most of the money. I drew a parallel to song-writers' royalties. I also mentioned the furor that occurred over the All Music Guide fiasco years ago, wherein hundreds of reviews were reprinted in book form, and the writers were paid nothing.

I have written about this contract saga at Howard's urging, in the hope that all JJA members and writers everywhere will think about unifying over intellectual property issues in an attempt to alter the terms and contracts that undercut our ability to make a better living.


C o m m e n t s

Contract Woes 1 of 3
JoAnn Kawell June 28, 99

Karen- Unfortunately, your story is becoming all too common, as are all-rights contracts. I'm not a music writer, but I also have recently turned down work because of a non-negotiable all-rights contract. It sounds to me, though, like your publisher's actions were particularly sleazy (if hardly unique)--since you weren't informed that you were doing work in an all-rights situation until after you'd actually submitted it. Might I suggest that you consider joining the National Writers Union? Jazz Journalists Association members can become associate members, I think, for a reduced fee. Full NWU members get FREE advice on contracts and on enforcement of contracts after they're signed. (See www.nwu.org) I just spent a day in a national meeting of NWU contract advisors-- it was obvious that all-rights contracts are the biggest problem that writers of all kinds face these days, and that these NWU advisors have a wealth of experience in dealing with them. You are also right that the best way for writers to change the situation is as a group--- what better group than a national one dedicated to exactly this task? Among other things the union is doing in the face of the proliferation of all-rights contracts, the union's journalism division is trying to monitor publications which treat writers especially shabbily. Sounds like your experience qualifies. Jo Ann Kawell Berkeley, CA

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