Why writing for magazines is not what it used to be

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by Dan Carlinsky

former ASJA Vice President/Contracts

In the 1930's two kids just out of high school dreamed up a comic character and sold it to a publisher for $130. Following common practice, the publisher took all rights. The kids were Jerry Siegel and Joe Shuster. The character was Superman.

Before television writers and actors realized the huge potential of the rerun market, some signed away the right to earn residuals in exchange for a decent paycheck. It seemed like an okay deal at the time.

W.C. Handy and Fats Waller are among the songwriters said to have taken a flat $50 or $100 for tunes that became million-dollar hits.

Today, as traditional publishers ride the shock waves of the electronic explosion, many of us who make a living writing books and magazine articles are acting like those earlier creators who didn't know better or didn't believe they had the clout to do better. Through our organizations and as individuals, we need to act fast lest we become the next generation's objects of bemused pity.

When it comes to helping themselves to rights, magazine publishers often have a boardinghouse reach. This is surely due in part to the fact that magazine articles generally are unagented. What's more, agents who do handle an occasional magazine contract as a courtesy to a client don't always devote the time needed to read and negotiate all the fine points; for a commission of a few hundred dollars at most, it may not seem worth the effort. Nor do many writers feel themselves positioned to press for better terms in a notoriously lopsided buyer's market.

Actually, 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 World Wide Web sites, 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. (Are the lawyers paid by the word, perhaps?) 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.

I haven't yet seen a magazine contract that demands my car, but I'm being extra-careful to lock the garage door at night.

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 for those subsidiary rights.

"Give us a break," say those publishers. "This electronic stuff is new and we aren't making real money on it yet." True, e-rights may or may not earn big fortunes. But they already are a significant source of revenue to some publications, and others are sniffing around cyberspace and licking their chops.

In recent years, hundreds 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 their magazines, often including entire articles from the print editions. In still another kind of online enterprise, 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 online picture in a broad hybrid setup. 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.

Does your publisher argue that you shouldn't expect compensation because its electronic ventures are just speculation that isn't yet bringing profits? That's your property the publisher wants to gamble with. They don't pass out free chips in Atlantic City.

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 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? Ordinarily, you can't sell shares of stock yourself either. If Grandpa leaves you 5,000 shares of, say, Behemoth Corporation, do you hand it over to your broker to sell, entirely for his own enrichment? Or do you have him sell the stock, keep a commission and return the larger portion of the proceeds? The answer is clear, because the stock is your property.

So is your writing.

The question isn't whether you can peddle a license on your own. The question is, If profits are 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 often 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 Appétit...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 there is no small amount of hypocrisy in their actions. Many of these same publishers are knowingly committing blatant copyright infringement themselves--every day--against the very creators who provide the foundation of their entire industry.

Can you imagine a television production company licensing a series for syndication without having authority from each party involved? They'd never do it, because they know they'd be in court before the first commercial. 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 recent skirmishes, writers have found that flexing some muscle pays off. Sometimes for the asking, sometimes under threat of small claims court, magazines that have grabbed electronic rights without permission have paid up when confronted; they include Consumers Digest, Datamation, Los Angeles, Marketing Computers, Newsweek, New York, Vegetarian Times, and others. Some other publishers resist all complaints, offering the increasingly rare opinion that a license for one-time publication in North America includes database rights--a license to offer electronic reprints around the world forever. No wonder many editor-writer relationships have turned from essentially collaborative to adversarial and bitter over the issue of rights.

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.

Some publishers have required only a little prodding to drop their most objectionable terms; others have come around only because ASJA, other writers' groups, and key individual contributors have put on the pressure. Whatever the cause or circumstances, more and more magazines are paying for "electronic rights." Some now pay fees for the right to use articles on a Web site; others split the income from sublicense arrangements with database compilers. The Authors Registry, the not-for-profit licensing and collecting society, is helping more and more publishers handle the chores that come with paying for e-rights.

Many magazines, then, are showing respect for the rights of freelancers to benefit as their creations fuel the new generation of publishing. Others--by sublicensing new-media use of articles when writers never signed for such use, by issuing contracts claiming extra rights for free--are testing the water. To reclaim our right to profit appropriately from our work--our property--we must make the water hot.

 

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