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Contents:

* Complaining, or considering?
* WMFH or copyright assignment?
* Credit where credit is due
* Bait and Switch
* Just in Time?
* Keeping Perspective
* Contract-savvy speakers available

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Complaining or Considering?
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Absent some more definitive demonstration of masochism, we assume that those who voluntarily read this document do so for a profitable edification. Even if not enjoyable, negotiating terms and conditions is a necessary part of any business, and freelance writing is a business. Yet it is understandable how people get weary. We've all heard directly or through the grapevine that some writers are tired of the whole discussion. They insist that all writers have their own views towards all-right contracts and work made for hire (WMFH), that what bothers some is acceptable to others, and that life would be better if we all stopped arguing and concentrated on making livings.

We find ourselves of two minds on this. Writers view contracts differently, and the dictates of any party - whether a New York Times or some Contractually Correct writer - are typically too inflexible to be of practical benefit. Frequently, writers trying to avoid red ink in checkbooks turn to black ink on contracts, even if it results in offering more rights than they otherwise might. We agree that with a wolf on the stoop, procedural purity can sometimes do more harm than good: a principled statement of position is muffled when articulated from the inside of a carnivore's stomach.

And yet, and yet, and yet. We have seen our share of writers back down from publishers without the desperation of circumstance. Sometimes they signed first and thought second, which would be capitulation by default. More often, they told themselves that uncompromising terms were something they could live with because they were afraid to negotiate. Some writers never seek help, assuming that the insistence on better contracts is futile. In any of these cases, the writers at times even lie to themselves, saying that offering all rights is their choice. It isn't, because they are running from the true choice: negotiate contracts that work or find other customers. Yes, we know the market is bad, and, yes, we know that assignments are tight. Do we know it. Even so, we hear from writers who are having a good year, expanding their sales, and finding new markets. There is a choice - and often a better one.

The secret of negotiation is to be ready to walk away from a deal that makes little sense. To do that, writers must realize that they should be constantly marketing, prospecting, expanding their markets, and strengthening themselves financially. Over time it will become possible to negotiate ever more effectively, because simple efforts, made regularly and often, will improve business prospects. But the first step is to be honest and admit what you need and what you often given away - and what it might really cost.

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WMFH or Copyright Assignment?
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To understand the consequences of a contract, you must also understand its contents. In a recent exchange on a discussion board, we noticed one writer telling another that WMFH means you have given over the copyright. It sounds reasonable, but is actually incorrect. In WMFH, the copyright never sees a transfer because the other party technically becomes the author of the document. In other words, not only do you lose all rights in the writing, but you are not even the legal author. The publisher has no obligation to list you as the writer and may make any changes or modifications it pleases without your consent. Or, even worse, the publisher could significantly change the text and still say that you wrote it, even if you might now disagree with its slant or conclusions. It is a burden.

Unfortunately, many writers also do not understand that language avoiding WMFH terminology can still decimate their business potential. One correspondent recently signed a newspaper contract that called for all rights without any mention of non-exclusivity. The writer asked how soon she might sell the piece to papers in other geographic areas. Our answer was an unfortunate never. Selling "all rights" means giving up everything you might do with that piece of writing. Moral: Every word in a contract usually has specific meaning, and if you don't understand the implications, get some help before you sign, not after.

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Credit Where Credit is Due
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Contractual language can have specific legal meaning that can trip you. But there are also cases where even the non-lawyer can easily understand the meaning - and where the words can still trip you. We've seen an increase in the use of a clause looking for credit. Writers are free to resell articles so long as they credit either the publisher as the copyright holder - when the contract has demanded copyright - or the publication as the place of the article's first appearance. "Fine, no problem," many writers have said. "I keep rights to resell the article." And they do, except that the particular wording can make it next to impossible to exercise those rights. There is the potential issue of legal entanglements - how can you ensure that the publisher will actually add the tag line? But there is an even more fundamental problem. Magazines almost always want to appear as the source of the article they print. Requiring the acknowledgment of another company makes an article less attractive. After all - and with apologies to those who don't remember a day when not all department stores seemed to be owned by one conglomerate - would Macy's advertise Gimbel's, let alone tell?

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Bait and Switch
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With any contract, it is important to realize that the wording might have implications that range far beyond whatever assignment you are currently covering. A travel writer noted that his own misreading of a contract had far-reaching implications. A major northern California paper had published many of his stories in the 1980s and 1990s, but had also made money making the stories individually available. Clearly this was a violation of copyright that the Tasini et. al. vs. the New York Times case would later definitely decide. However, the future was unclear in 1999 when the writer received a contract from one of the editors. To keep selling to the paper, he'd have to sign it, the editor said, including the clause surrendering all rights to the older stories. The writer signed the contract because the paper was, after all, a good customer, and he wanted to keep making money. But he never again made a sale to that publication. Clearly the paper was less interested in the relationship going forward than in retrospectively covering its broad hindquarters. So any compensation he might have received is gone. When reading a contract, never assume why the other party might have drafted it as it is. You can find yourself in something like the classic "bait and switch," where a company advertises one product at an attractive price, only to sell customers on their arrival into buying another, more expensive one. If you see something in a contract that appears to have no relation to the work at hand, we'd suggest that maybe it doesn't, and that a second, or third, thought might be appropriate. Don't get sold out of a bill of goods.

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Just in Time?
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Most writers have experienced the arrival of a publisher's contract after turning in the article. In some cases, the paper hits your desk after their paper (or magazine) hits the news stand. When the terms are bad, you might feel compelled to sign, and there are those editors who pass on the message that a signature on a check is dependent on a signature on the contract. The good news is that you may have more options than you thought.

If the article is yet to appear and the publication is on deadline, you are in a negotiation position that is actually stronger than when you first get the assignment, that golden hour when they wanted you and you wanted them and all was well. Chances are that someone now depends on that story actually running, and so the publication might be more amenable to changes. If not, you can try withdrawing the piece. Or, as a publishing lawyer we know has pointed out, you can just refuse to sign the damn thing. If the piece is actually printed, you are now under the Tasini decision, because the refusal to sign is a rejection of the proffered terms. Your position is even stronger when the contract arrives, as it sometimes does, after the work is in print - not just late in the game, but after the umpire has gone home. We've recently talked with several writers who received contracts in such a fashion and who were told that they had to sign to receive a check. Following some advice, they pointed out that it is illegal to try and force someone into unfavorable conditions, and that it might make sense to talk to the legal department. Each of the writers received a check for the money owed, and without too much delay.

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Keeping Perspective
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When it comes to the wrangling over contracts, writers often have visions of forked tails and horns. We admit to the flashing whim of calling this Sympathy for the Devil, but that impulse is useless, more often than not. Instead of simply getting angry at another business, it is usually prudent to keep a clear head and focus on what you really need and want, and to focus your negotiations. One way to do this is to try and put yourself in the place of the publisher. We had an opportunity to ask another publishing lawyer about the onerous variation on indemnification clauses that trigger on even an alleged action that, if it were true, would be a breach of the warranties that the writer gives. The obvious problem for writers is that they must offer indemnification even if they did nothing wrong. We still advise strongly against agreeing to such a clause, but the lawyer said something that made us think twice. This man has close to 30 years of experience and has represented both authors and publishers (and many others in the intellectual property business), and so hasn't an axe to grind. He said that publishers started putting these clauses in because writers actually had burned them, either libeling someone or committing plagiarism unconsciously by being too strongly influenced by something they once read but had forgotten. Because it is often far cheaper to settle a suit, often the publishers do so, which means no court decision and no consideration of the nature of the writer's work. Again, we would strong advise against signing a document with such a clause, but it can help keep things in perspective to remember that writers probably cause angst for publishers about as often as publishers pain writers.

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Contract-Savvy Speakers Available
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As always, the ASJA Contract Committee has speakers available on the subject of contracts. We can't make any guarantees - these people donate their time to this cause that they consider worthy, and they all must make a living, so might be unavailable - but if you don't ask, you can't get. If you'd like someone to come speak to your group, write us at contracts@asja.org.

Contracts Committee
ASJA
1501 Broadway, Suite 302
New York, NY 10036
tel 212-997-0947
Fax contracts to: 415-532-1324
Email us at: contracts@asja.org

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