The Contract Doctor Is In

The Contract Doctor Is In

by William Minor
copyright © 2001 William Minor

Contract Doc: One · Two · Three · Four

At an exceptionally well attended national JJA meeting, held at the time of the San Francisco Jazz Festival, those present -- President Howard Mandel, Floyd Levin, and me -- discussed Assocation business, and then, since all three of us have published books (Floyd's book just out at the time, in fact), turned to the delicate topic of publishing itself. Because I do volunteer work as a book contract advisor for the National Writers Union, Howard suggested it might be advantageous to run a sort of "Contract Doctor" column on, or in Jazz Notes, or perhaps both. I agreed to "test" the appeal of such a column by writing an introduction to the tricky (and increasingly intricate and troublesome, because of the e-world onslaught in all areas of publishing) subject of both book and standard journalism contracts -- focusing on such issues as copyright, piracy, piracy protection, subsidiary rights, authors' rights in general, WMFH (work-made-for-hire), free use, etc. If there are "takers" (JJA members with specific questions), the column might be offered on a regular basis. At the time the idea was "hatched," Howard said he would (with Floyd as witness) "hold me to it," so . . . here we are.

First of all, let me say that I do not intend to use this space for the purpose of proselytizing. I am a "believer," a convert to the Writers Union, because of circumstances that more than likely may surface from time to time (issues that affect us all), but I also realize that, to some JJA members, the word "Union" is anathema -- aligned with the Devil's party. Be that as it may, I will simply say that the Union does have resources not otherwise available to writers (such as an agents database--for one--that includes evaluations, not just the customary list of agents as anonymous as potential doctors), and I would like to make use of such esoteric lore in this column, because it's been my experience--dealing with writers who have just received classic "boilerplate" contracts (contracts that should be fully negotiable but which, provided by publishers, assume exclusive rights for themselves not writers)--that writers, in the first rush of excitement over being "published," are all too willing to sign what they shouldn't, without bothering to read a contract's small print -- or all too frequently its large!

For example, watch out for clauses that allow a publisher to "reproduce the Work or license the reproduction of the Work or any part of the Work" by [a healthy specific list will follow, and then the clincher] "any other means or combination of means whatever whether now in existence or hereafter invented." I know a screenwriter who received such a contract and his mentioned any means now known or yet to be known in the universe at large -- or such as we know it!

I think it's quite natural for writers -- who are busy enough with the demanding particulars of their trade -- not to want to deal with all this legalistic "stuff." I never would have, were it not for the fact that, formerly and on too many occasions, I was one of those writers who did not bother to read his contracts carefully enough, and I eventually got sick of being "taken." So many times that I thought I'd better dig in and find out what was really going on in the world of publishing -- both "e" and print -- rather than just wishing that things weren't so (what Zen practitioners call kono-mama, suchness, or things as they are).

In a 1995 issue of Jazz Notes, Art Lange provided a clear and comprehensive piece on a subject he realized "a lot of writers may not know much about": the legalities of copyright. He pointed out a fact that many writers are not cognizant of: that a work is theirs -- that copyright adheres to it -- the moment they begin and complete the act of creation. At the time, the going phrase was "fixed form." The term now is "tangible medium of expression." When Art wrote, copyright remained in effect until 50 years after a writer's death. The terms have now been generously expanded, at the behest of Disney, Inc. (a provision made especially for Mickey Mouse), to 70 years.

The concern that prompted Art's piece was a problem that seems -- in light of increasingly outrageous acts of piracy associated with e-publication, a glut of unscrupulous third party vendors willing to rape and pillage any archive -- somewhat tame perhaps, but one that affected jazz writers at the time: the discovery that thousands of record reviews (I think Kevin Whitehead had a near record high of finding 48 of his so used) miraculously turned up in a 751-page paperback collection, a sort of cursory condolence extended to the authors thereof (along with thanks to editors and staff of various magazines who approved the theft), but--of course --the rights of the writers themselves (their approval or permission to re-produce) had been ignored. Those were the early, "good ole days" -- nearly innocent in comparison with what goes on now -- of Web war.

Between 1995 and 2001, infringement escalated to epic proportions, and it is no longer safe to assume -- on the wild, wide, open, pirate-infested seas of cyberworld -- that a work is yours when created. Or, you can assume that, but the assumption will not hold up in court. Now, unless you register your work (leaving a record, a date, against which infringement can be compared), you have no real legal claim should piracy occur. We've come a long way from the days when Jefferson Airplane forgot to put a copyright notice on the album containing a toaster with wings, and was tossed out of court because of it. Now, an outfit (not to be named) can pirate 24 of an author's articles for its newsletter and, when that author attempts to sue, the case will be tossed out because "the plaintiff has failed to protect her own rights because she failed to obtain valid copyright registration" [an actual, not hypothetical case]. Today, even a copyright notice -- should push come to shove in court -- is not enough. . . .

Next time out in this column, I will provide a few interesting if not exactly heartening examples of the activities of that new breed of pirates and poachers who've sprung up on the current publishing scene, and practical details on just how to protect (and register) a copyright. But enough for now -- this first time out. I hope this column will prove useful to JJA members. We hope to keep it fully interactive -- providing both a live link (so you can post questions to me directly, anonymity preserved or secured, if desired) and a comment box for which I will serve as designated "moderator."

Please don't be shy. The issues -- copyright, piracy, piracy protection, subsidiary rights, WMFH, backlists, POD and subsidiary e-publishing, etc. -- affect us all and can be discussed and clarified, hopefully, to everyone's satisfaction. Also, if you are interested in services provided by the National Writers Union (its "strictly voluntary" associate membership program, which provides health insurance for JJA freelancers -- or in Union membership itself), consult the Lobby section of, and for what's available. More about this later. . . .

That's it for now. The Contract Doctor is in, ready for business -- and looking forward to hearing from you.

William Minor is an author, story-teller, journalist, educator, drummer, listener, and JJA member-in-good-standing; all opinions in his columns are his responsibility, not necessarily reflecting the editorial staff of Jazzhouse.

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