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RE: [GWL]: Contracts - revisited
Debbie Leung wrote:
> Its hard to believe that after all the court rulings, the paper I write
> for (a column on eating
> local foods, which includes growing them!) wants me to sign (again!) a
> contract where I give up
> all rights.
>
> A couple years ago, my editor, the features editor, wanted me to sign
> this contract, a work for
> hire agreement. After speaking with the executive editor, we agreed to
> continue with my original
> contract where the paper buys "one time publication rights". They would
> pull my column from the
> online version, because extra payment was out of the question. Now with
> a new features editor, I
> am asked to sign this agreement again.
>
> It says, in part: "...you agree to give the Newspaper, Gannett Co.,
> Inc., its affiliated
> corporations and licensees exclusive publication rights of your Work in
> the Newspaper, as well as
> the exclusive rights to reproduce, edit, adapt, modify, perform,
> transmit and otherwise use the
> Work, including any derivative works created therefrom, in any manner or
> medium throughout the
> world in perpetuity without additional compensation. This includes, but
> is not limited to, the
> right to reproduce and distribute the Work in electronic or optical
> media, or in CD-ROM, on-line
> or similar format. Following your submission of the Work to the
> Newspaper, the Newspaper is
> willing to consider a request by you for a non-exclusive license to
> reproduce and/or distribute
> the Work to third parties."
>
> What they pay me is definitely not worth full rights. Any advice?
>
> Your help is greatly appreciated,
> Debbie Leung
>
>Debbie -- This contract in no way violates any past or recent court
>rulings. Our legal status as writers is excellent. We automatically
>own copyright and all rights in our writing, whether we file a copyright
>notice or not, unless the work is a work-for-hire. Otherwise, we own
>all rights to our work unless or until we legally transfer one or more
>specified rights to someone else. When we legally transfer a specific
>right, we continue to own all other rights, including any unmentioned
>rights -- including even as-yet-to-be-conceived rights.
The recent court activity over electronic rights represented an attempt
on the part of publishers to claim electronic rights without the right
having been transferred legally. Fortunately, the attempt was denied.
If we did not specifically transfer electron rights, they are ours, as
is the case with all other rights.
Work-for-hire pertains to writers who are employees of a company, or who
have signed a formal work-for-hire contract. Your contract isn't a
work-for-hire. It IS an all-rights contract, and it is perfectly legal.
It may or may not be to your benefit to sign such a contract or work
under such terms, depending upon your goals and situation.
I will mention that I do find one particular sentence in the contract as
worthy of contempt. To wit: "Following your submission of the Work to
the Newspaper, the Newspaper is willing to consider a request by you for
a non-exclusive license to reproduce and/or distribute the Work to third
parties." This is worthy of contempt, because, first "willing to
consider" doesn't commit them to anything legally. Second, after you
have written the work, you have lost your leverage. You don't negotiate
the money after you have already done all the work; you shouldn't
negotiate the rights then either. If you need to be able to reuse your
work and/or liscense it, you need to spell it out. And the correct time
and place to spell it out is in the contract you sign BEFORE you do the
work.
I find that particular sentence so offensive, because it seems to me to
be legally/emotionally dishonest. That is, I infer that most writers
will sign the contract hoping that the publisher will be generous to
them beyond what the contract requires if they come whimpering back
later wanting to use their own work when suddenly it is needed. The
writer will probably sign the contract, hoping that "willing to
consider" means they will say "yes," if and when asked. If it did, this
contract would simply grant self-use as part of the contract. I think
the publisher has done some arm-waving to deceive the writer into
signing away more rights than she thinks she has, and into believing
that the loss of those rights isn't necessarily serious or permanent.
However, I would not hold my breath on being able to get the relevant
rights back after signing this contract, and certainly not on getting
them for free.
Frankly, my guess is that you would get self-use rights back not at all,
or only by buying the right back from the publisher, and possibly at a
cost of more than the entire amount you were paid for the story
originally.
Many science fiction writers back in the "bad old days" of early SF
magazines had to "buy back" reprint rights to their work from the
magazine publishers in order to be able to include it in anthologies,
once anthologies started happening. Those old SF magazines mostly all
used "all rights" contracts. At the time, they were the only market for
SF stories, so the authors didn't think they were losing anything. SF
novels and anthologies only became popular later. Nothing limited the
buy-back cost for one-time use in a collection of the author's work from
being more than was originally paid for the entire story. The publisher
has all the leverage at that point, and the author usually badly wants
his anthology to be complete. Some SF authors were not allowed to buy
back even a one-time reprint right to certain stories. So they were
thus prevented from ever publishing a complete collection of their own
works.
Some editors/publishers might immediately say, "Oh, we would never do
such a rotten thing." (With respect to this or some other point on a
contract.) And they might not. Now. But a contract is not just for
you and this particular editor and publisher. It's for you plus another
couple generations of your heirs or assignees on both sides. You might
trust the current publisher; but his heir or the guy who buys him out
tomorrow might be a malicious jerk. Or your heir might be. Contracts
have to cover the life of the copyright, which is the life of the author
plus 100 years.
Other than that single sentence, the rest of the contract is as honest
as can be. The publisher wants all rights, and spelled it out in
excruciatingly great and painful detail.
I doubt if the publisher needs all rights, but in these days of
e-versions of newspapers and subcontracting for access to entire data
bases, they may need pretty close to all electronic rights in order to
use your column as part of their website.
If I were thinking about this contract, I certainly wouldn't sign it
while it prevented me from using my own work. I probably wouldn't sign
it even with a self-use exception granted.
I would think in terms of crossing out that entire paragraph you quoted
beyond the first line and a half, and substituting something granting
1) First North American Serial rights
2) an agreement to refrain from publishing elsewhere for a period of
time
3) the Nonexclusive electronic right to use the article on their
website(s).
If the newspaper is subcontracting the data base of all their articles,
the editor would probably ask for all electronic rights. I might
counter-offer with non-exclusive electronic liscensing rights. That
would mean I could still use my work on my own website or liscense it to
worthy organizations who don't have money. However, any dollars
involved in electronic rights would probably end up with the publisher,
since they would be more likely to find the financially useful sales.
I would be retaining the unstated reprint and book rights. I wouldn't
not give these up. But everything depends upon your situation.
It's not at all obvious what electronic rights are "worth." They are
worth a lot to a writer who is writing something from scratch for first
and sole publication on the web. And they are worth a lot if someone
else's ownership of an electronic right competes seriously with the sale
of the same material by the author, for example, in a book. But it
isn't obvious that publishers of newspapers are making in additional
money from their electronic versions.
I'm a bit surprised that on your last contract with this publisher, you
got them to keep your article out of their e-version because they
couldn't pay more for it. I think that's going to be increasingly hard
to do in the future, as publishers will be needing complete e-versions
just to stay in the game. My guess is that this publisher now really
needs at least certain electronic rights, and you will need to consider
them part of the deal. That may mean you want to back away from the
deal entirely.
Not only are writers pretty much being expected to throw in electronic
rights for free, publishers are being expected to throw in a whole
electronic newspaper essentially for free.
What subsidiary or electronic rights are worth in money is only part of
the issue. It can cost you more to give them up than anything anyone
might pay for one of them. For example, if I publish unique material in
a magazine article, it competes very little with the same material later
reworked into a book. But an electronic version of the article
available for free might well harm sales of and seriously compete with
the book.
It's not surprising that you got a new disimproved contract when you got
a new editor or publisher. That seems to be par for the course.
Another thing I've noticed: Whatever I negotiate with the editor
initially is never what is in the contract when I first get it (other
than dollar amounts and delivery times). I've had editors agree on the
phone to First North American Serial Rights Only contracts, then have
received a contract that called for joint ownership of the copyright and
near-all rights. It's not uncommon to get an all-rights contract when
you have the editor's telephone agreement to something else. There
seems to always have to be an additional phone call to bring the
contract into line with the basics already discussed and to deal with
additional details. At this point, I interpret an editor's verbal
arrangement with me to represent what we will end up with after I have
the contract and after I've spent a day analyzing it and figuring out
what has to be changed, and how to change it in the context of their
document, and after I've called the editor back and got his OK for the
changes.
I often, by the way, cross out half of a contract, alter a few points,
and add two more. At times I've crossed out entire pages with a single
cheerful two stokes. I have crossed out up to 90% of a contract, and
had it accepted, and accepted quite gracefully and cheerfully. More
often than you might suppose, a publisher needs some right and fails to
provide for it in the contract. I helpfully add it. I don't try to
substitute a contract of my own, because that would usually have to go
through the publisher's legal department. Heaven forfend. Modifying
the publisher's contract on their piece of paper, however drastically,
doesn't appear to require legal review. Most editors have the power to
alter contracts.
I certainly never, by the way, try to substitute any of the
super-wishful-thinking contracts that writers' organizations come up
with. Maybe some publisher in the history of publishing has signed one,
but it can't have happened very often.
Debbie, your remark "What they pay me is definitely not worth full
rights." seems indicative. Sounds like they are paying little enough
for the work and hassle involved that you are experiencing some
resentment. Whenever I find a resentment element in my thinking about a
contract or a publishing relationship, I back away.
Debbie, your column sounds as if it might be a book in the making. If
so, you simply would not want to give up your ability to reuse your own
material in a book. And you would not want electronic versions of the
material floating all over the place, either. A potential book
publisher is much less likely to want a book if much or most of the work
is freely available on the web; at the very least, the electronic
versions of your material would compete with your book. So if you are
writing a column only, you might be able to negotiate a workable
contract and get on with it. But if you are thinking of a book sooner
or later, you might want to drop this columne, and sit down instead and
write a book proposal.
Good luck.
Carol Deppe
Author of BREED YOUR OWN VEGETABLE VARIETIES: THE GARDENER'S AND
FARMER'S GUIDE TO PLANT BREEDING AND SEED SAVING (Chelsea Green, Dec.
2000) (See table of contents, excerpts, & reviews at
www.chelseagreen.com.)
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