The Contract Doctor Is In: Number Four

The Contract Doctor Is In: Number Four

by Bill Minor
copyright © 2002 Bill Minor

Contract Doc: One · Two · Three · Four

I apologize for the delay in the appearance of this column. Actually, I've recently signed a contract for a book and appear to be on the verge of signing another, so I will confess that it's quite nice (as Kingsley Amis has Lucky Jim say in the novel by the same name: "There's no end to the way in which nice things are nicer than un-nice!") to be on the receiving end of book contract assistance (I am advising myself!) and not just "giving" it -- although that end is often quite rewarding too! The editor/publisher who recently offered me a contract to sign is also a writer herself and a member of the National Writers Union, so she wanted to make her standard document more "writer friendly," and I was asked to work with her toward that end, and then was fortunate enough to reap the benefits of improvement, to be the first recipient of a better contract!

I previously promised that, in this fourth Contract Doctor column, I would address some fairly recent developments in periodical publication and contracts for freelance journalists: jazz and otherwise. "What contracts?" jazz journalists might ask, due to the fact that -- up until now -- most of us were accustomed to receiving "assignments" -- frequently over the phone -- rather than being offered an agreement much less an actual "contract" to sign. These assignments more than likely included a fee that was offered and a due date and were, hopefully, mutually agreeable or agreed upon, but no "paper trail" or document was ever proposed ("There just isn't time for that!"). This was certainly true for most of the jazz journalism work I did in the past, but . . . as a very young folk singer once informed us, "The times they are a-changin'."

If you now find yourselves being offered, pondering and signing (or refusing to sign) an actual document, the catalyst for change has more than likely been the advent, and now prevalence, of electronic archives: a sort of Guantanamo Bay in Cyberspace, where we can all be detained: the data base.

When I started writing this column, one of the major issues in publishing was piracy: how to protect your work from appearing, without your knowledge (and without any form of recompense), on line or even in books. The culprits were frequently third party vendors out to make a buck or two on the wide, lawless, open seas of Cyberspace, and their methods were far from scrupulous. Fortunately (and without naming any names) many of these third party vendors have now gone under, are no longer "with us," but the database "grab" goes on, with this change: What was once covert now seems to have become overt.

A good way to mark the change is to take a look at a celebrated or what's been called a "landmark" case: the June 2001 Supreme Court decision in favor of freelance writers: Tasini vs. the New York Times. The issue here was that which has, now, become paramount: the digital re-use of once published articles. When the Times placed the work of its freelance writers in electronic databases (and without written consent), the cry of "copyright infringement" went up. The Times had licensed this work out to LexisNexis, which in turn offered it at "download fees," thus depriving the work's originators -- writers -- of an article's resale value, or its "financial afterlife." The Times claimed (because articles were archived by subject or author and not the date of publication, and stripped of their "original visual format") that it had a right to this work as "re-visions of the original," as "collective work," but the Court didn't buy the argument (or ploy) and decided, by a vote of 7-2, that the i>Times was indeed guilty of "culpable copyright infringement."

Unfortunately, such a major "universal" decision did not spell the end of such practices, and cases continue to be decided on an individual basis. Publishers, fearing additional liability (the Times said there was no way they could track down 115,000 "infringed" articles published between 1980 and 1995 by 27,000 victimized authors, and suitably reimburse those writers), retaliated by threatening to purge freelance articles from their electronic databases, claiming this act -- initiated by themselves -- would "put a hole in the historical record" and sadly deprive future scholars of access to valuable research!

Whatever the future holds, these developments have introduced a fresh vocabulary in the world of publishing, along with pejoratives such as "Rights Grab,""coercive contracts," "megalithic control," and "punitive licenses." You won't find such terms in the contracts you will be offered for freelance work in the future, but you are likely to run across the following, in one form or another:

  1. Indenture. This is a "binding acknowledgement of the assignment and transfer" of your rights to the Publisher "into perpetuity." In other words, once you've signed your rights to your work away ("your endorsement, your confirmation of the continued existence of this agreement"), you have done so forever.

  2. Branding. The Publisher may -- "now or in the future," and without additional payment -- place an "exact replica" of your work in any of its "affiliate organs" ("other entities" with which the Publisher may contract); it may sublicense a freelance writer's work in any media or package that carries the "parent" publication's "brand." For example, a feature section you write for one "organ" can appear in any other, without your consent or any remuneration!

  3. Embargo. The masthead of a jazz magazine I like to write for (I won't mention any names, but it's in Canada), states, "All rights to the material . . . revert to the writers and photographers upon publication." This is as it should be, but it may also be a thing of the past. In the future, you will more than likely run across a clause that gives the Publisher "first and exclusive Worldwide publication rights," rights they reserve until they serve notice that those rights have discontinued. Or you will be told that you cannot re-sell or republish the work for a period of six months (or whatever time frame they set) from the date of initial publication. That's an "embargo" period.

  4. Editorial control. In a good journalism contract, the Publisher will agree -- irregardless of time constraints -- to make "every reasonable effort" to make the final, edited version of an article available to you, "while there is still time to make changes"; and you and the Publisher "shall agree on what changes are needed" and on a suitable -- mutually satisfactory -- deadline for revision. In a bad contract, the Publisher reserves the right to edit, revise and title the article "as needed" (without consultation) -- or you may find a clause that states that the Publisher "may exercise all rights of ownership," which includes, "without limitation," the right to edit the work as it deems "appropriate for publication." And watch out for the insidious phrase "at its sole discretion." That leaves you out -- of everything!

  5. Kill fee. Kill fees should not exist (there should be no need for them), but because there is on occasion a definite need, they do (exist). Ideally, you should receive full payment for whatever work a Publisher accepts, whether they get around to printing that work or not! However, many contracts will include a provision that states, should a publisher decide not to print your work (and watch out for any clause that states "nothing in this agreement will obligate Publisher to actually publish the work, even if it has been accepted for publication"!), that they will limit reimbursement to a particular percent (say, 25%). 25% is way too low. If you have to take a kill fee, it should not be less than 50% -- and preferably much higher (100%!).

  6. WMFH, or Work-Made-for-Hire: If you accept a WMFH assignment, the Publisher owns the copyright to your work, just as if you were an employee. This provision was originally intended to cover independent contractor technical writing, marketing materials and textbooks, not journalism, but has been extended now, and is applied to journalism assignments (even though there are specific requirements to qualify for WMFH, requirements that frequently don't apply to what you are asked to "sign" on as WMFH, requirements I will discuss in my next Contract Doc column). In a WMFH arrangement or "agreement," you get paid a flat fee and cede all rights to your work (even your byline!).

An ideal, or desirable, journalism contract would contain provisions (specifically negotiated clauses) that:

  1. exclude WMFH, or its "All Rights" clones, if possible;
  2. provide suitable time for (mutually agreed upon) revision and publication date;
  3. state a specific date for payment -- not just "some reasonable time," but a specific number of days ("within 30") after "delivery" of the work;
  4. grants the Publisher one-time publication ("North American hard-copy print publication") rights only and notes that all other rights are reserved for the writer;
  5. guarantees that expenses ("previously agreed-upon") will be reimbursed within a set number (15) of days after submission of receipts;
  6. agrees upon a means (arbitration) of settling any "disputes";
  7. and contains an indemnification clause that is "fair" to the author (I will take up the subject of indemnification -- a big item -- next time out, along with the specific requirements for Work-Made-for-Hire, and information on subsidiary rights such as your work appearing in foreign "translation").

I am sorry to report that not many journalism contracts I have seen lately resemble this "ideal." Most attempt to grant the Publisher "exclusive" rights or even non-exclusive rights which place them in direct, open competition with you as a writer as far as licensing possibilities or opportunities go, and too many attempt to grab All Rights. But if the trend toward written contracts (rather than "oral" assignments) I have attempted to describe here becomes increasingly prevalent (and I believe it will, even in jazz journalism), an "ideal" contract may be something to keep in mind, and fight for -- or at least attempt to negotiate. And if you are now receiving journalism contracts for the first time in your life, be sure to read them very, very carefully, before you sign (your rights away!).

Next time around -- as promised -- I will provide information on indemnification clauses, WMFH requirements, and subsidiary rights (such as translation). Or any other topics that JJA members feel are relevant and should be discussed. The Contract Doc is back in "practice." I'm in again!

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