by Dan Carlinsky
The text below is based in large part on Dan Carlinsky's presentation to the NASW Workshop I: "Science Writers Update on Contracts."
Until very recently the business part of freelance magazine writing was a relatively simple matter: Write the piece, get paid a one-time fee, go on to the next job. In the great majority of instances, the work was published in the magazine, once, and that was that. There was little need for the kind of complicated rights arrangements common in the book world, where the use of an author's work often takes many forms.
Now, more and more, magazine content is being reused in a variety of ways, including special issues, anthologies, licensed foreign editions and the newest, most promising kid on the marketing block, new-media publishing ventures such as CD-ROMs and online databases. Magazines have grown up.
This new world of magazine publishing is full of promise.
It is also, for writers, mined like a harbor in wartime.
The increasing complexity of the magazine rights scene comes at a time of great consolidation in magazine ownership. More and more consumer and trade magazines are in the hands of fewer and larger corporations. As a result of these developments, the old two-graf assignment letter from your friend the editor ("We buy First North American Rights. In the unlikely event that the piece, after revision, is deemed unsuitable for publication, we pay a one-third kill fee. Your deadline is February 3") has been replaced by a full-fledged contract, written in high-legalese, that may run substantially longer than the article it covers. If accepted as is, it seizes for the publisher all or most rights to the work, stopping, it seems, just this side of claiming the writer's first-born.
Central to magazine publishers' demands, and the one most stridently put forth, is a broad license to exploit the work in any and all electronic media, "whether now known or hereafter developed," as the boilerplate often declares. Sometimes, the claim is made with no offer of compensation; when a concession is grudgingly made, it may be a small fee increase or a percent-of-net arrangement, both of which fall far short of the joint recommendation of the Authors Guild and the American Society of Journalists and Authors.
In recent months, scores of publications have begun to sublicense their content to online databases. Users pay a fee each time they access an article. The magazine publisher receives a royalty; the writer, with few exceptions, is paid nothing. Some publishers have begun online versions of entire magazines; right now, text-only is the rule, but online artwork is around the corner. In still another kind of online arrangement, users can sample articles from various magazines before ordering subscriptions with a few keystrokes; they don't pay for the samples and the publisher receives no royalty, but the promotional value of the extra use of the writer's material is obvious.
Reprint services, too, are in the picture.
Typically, the computer user finds a citation in an online index and orders the text at the keyboard. The pages are faxed or mailed for a service charge plus a "copyright fee." What is wrong with this picture? The copyright payments go to the publishers, who in the case of typical freelance articles don't own the copyright, have no legal standing to collect the money and weren't ever authorized to agree to a reprint deal in the first place.
Regardless of profits, now is the time to restate principles and declare the ground rules. Who owns a writer's work? The law is clear: If you write it, it's yours. If you choose to license a specific use, be it electronic or other, you are entitled to profit.
If, like most writers, you rarely sell secondary rights to a magazine article yourself, should you let the first licenser the assigning publication take the rights for free, or for a token payment? Especially with electronic rights, where deals so far have rarely been made with individual writers, should you simply yield those rights to your publisher?
The question isn't whether you can or will peddle a license on your own. The question is, If profits are to be made from your property, shouldn't you be among the recipients?
Conglomeration in the magazine world has done more than lengthen contracts. If you're unhappy with a magazine's terms, it's become dramatically harder to vote with your feet. You're a food writer who doesn't like Gourmet's demanding contract? Well, you could take your ideas and your work to Bon Appetit...but it's owned by the same company. The situation is repeated all over the magazine map.
All the more reason why writers must stand together now, before the uncompensated taking of electronic rights and other rights beyond First North American becomes a standard magazine contract fixture.
And what of the online databases that are already making magazines available to eager computer users for a per-article charge? They're being stocked not only with material covered by new writers' contracts but with thousands of articles from back issues, licensed to them, in many cases, by magazines that had no right to do so.
For the past several years, publishers have been crying "Copyright infringement!" at photocopying services, filing lawsuits and piously preaching the protection of intellectual property rights; now, they have begun to wage the same battle against electronic pickpockets who lift copyrighted material. They are right to do so, but many of these same publishers are knowingly committing blatant copyright infringement themselves every day.
Can you imagine a television production company licensing a series for syndication without having authority from each party involved? Writers, apparently, are thought to be such patsies that casually taking their property is a reasonable business risk.
By ourselves and together, we must challenge this notion. If, as now seems likely, this means a court showdown or a series of showdowns, so be it. The issue is far too important to allow bullying.
In early skirmishes, writers have found that flexing some muscle pays off. One writer won a $600 small-claims settlement from Forbes for licensing her article to Nexis without permission. Playboy, which used a free-lancer's 1967 interview for a CD-ROM collection without authorization, argued that it needed no permission but ultimately paid the writer $1,000. The National Writers Union has launched a major lawsuit against several publishers and their licensees, and other groups are considering mounting further legal challenges to the huge wave of infringement that threatens all writers' interests and has begun to turn an essentially collaborative process adversarial.
Meantime, magazine contracts which deal with the future rather than the past are finally receiving the scrutiny they deserve from writers. And despite what sometimes seems like a fatally tilted playing field, writers are finding that by working together they can improve their lot.
Travel Holiday (owned by Reader's Digest) responded to a campaign of protest by many of its key contributors, orchestrated by the American Society of Journalists and Authors and the Authors Guild; TH agreed to make "good faith" upfront payment for online database use and dropped its demand for all other electronic rights.
Other publishers are likewise offering extra pay tied to the extra rights.
Still others, meeting resistance by writers, are backing off, reconsidering, scrambling.
By sublicensing new-media use of articles when writers never signed for such use, by issuing contracts claiming extra rights for free, some magazine publishers are testing the water. To reclaim our right to profit appropriately from our work our property we must see to it that the water is hot.
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