From BonnieBelle@compuserve.com Tue Sep 30 22:27:55 1997 Return-Path: Received: from hil-img-4.compuserve.com (hil-img-4.compuserve.com [149.174.177.134]) by mail5.netcom.com (8.8.5-r-beta/8.8.5/(NETCOM v1.01)) with ESMTP id WAA01485 for ; Tue, 30 Sep 1997 22:27:54 -0700 (PDT) Received: (from mailgate@localhost) by hil-img-4.compuserve.com (8.8.6/8.8.6/2.5) id BAA16477 for sylviac@netcom.com; Wed, 1 Oct 1997 01:12:29 -0400 (EDT) Date: Wed, 1 Oct 1997 01:12:06 -0400 From: Bonnie Schell Subject: ASJA Contracts Watch 51 Sender: Bonnie Schell To: Sylvia Caras Message-ID: <199710010112_MC2-225E-C8F@compuserve.com> MIME-Version: 1.0 Content-Type: text/plain; charset=ISO-8859-1 Content-Disposition: inline Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from quoted-printable to 8bit by mail5.netcom.com id WAA01485 Status: RO ---------- Forwarded Message ---------- From: ASJA/Alexandra Owens, INTERNET:asja@compuserve.com TO: (unknown), INTERNET:monkerud@scruznet.com DATE: 9/30/97 11:29 AM RE: ASJA Contracts Watch 51 Sender: monkerud@scruznet.com Received: from scruz.net (nic.scruz.net [165.227.1.2]) by arl-img-5.compuserve.com (8.8.6/8.8.6/2.5) with ESMTP id OAA12294; Tue, 30 Sep 1997 14:29:10 -0400 (EDT) Received: from [165.227.114.236] (monkerud.sc.scruznet.com [165.227.114.236]) by scruz.net (8.8.5/1.34) with ESMTP id LAA04751; Tue, 30 Sep 1997 11:27:01 -0700 (PDT) Date: Tue, 30 Sep 1997 11:27:01 -0700 (PDT) X-Sender: monkerud@mail.scruznet.com Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" To: monkerud@scruznet.com From: ASJA/Alexandra Owens (by way of Don Monkerud) Subject: ASJA Contracts Watch 51 <> <> <> <> <> <> <> <> <> ASJA CONTRACTS WATCH 51 (vol 4, #12) CW970930 September 30, 1997 [The American Society of Journalists and Authors encourages reproduction and distribution of this document for the benefit of freelance writers. Reprint or post as many items as you wish, but please credit ASJA for the information and don't change the content.] News of court e-rights decisions, MEN'S JOURNAL, AMERICAN HEALTH FOR WOMEN, NYCITYLIFE, MARIE CLAIRE, CONDE NAST, NEW WOMAN, PSYCHOLOGY TODAY, BANTAM's "Star Wars" books.... * * * * * * * * A court in the Netherlands has ordered an Amsterdam daily newspaper to pay three freelancers who sued over unauthorized archival use of their articles in CD-ROM format and on the Internet. In its decision last week, the court rejected the contention by DE VOLKSKRANT, the country's second largest daily, that the new media uses were merely extensions of the print publication and found the newspaper guilty of copyright infringement. A newspaper manager was quoted complaining that paying to use freelance articles in electronic products might "seriously hamper our efforts." The three writers were backed in their suit by the Netherlands Journalists' Union (NVJ). Union secretary Inge Brakman applauded the decision, adding: "A publisher invests in computers, so why not in content?" ***** Meanwhile, in New York, a leading copyright lawyer has criticized a recent federal district court decision that went the other way. In the much-discussed "Tasini v. the New York Times," Judge Sonia Sotomayor ruled that use of the contents of a print publication in electronic text databases qualifies as a permitted "revision" of the original publication. (See ASJA Contracts Watch 49, August 15, 1997.) But Roger L. Zissu, former president of the Copyright Society of the United States and former chairman of the copyright committee of the Association of the Bar of the City of New York, said that's not what Congress had in mind when it wrote the law that covers revision of a collective work. Zissu told Carl S. Kaplan in CyberTimes, a New York Times Web publication, that a database is more like a "literary bank" than a revision of any publication. Kaplan quotes another critic, New York copyright lawyer Robert W. Clarida, as saying the "Tasini" decision seems to have come from "a judge who doesn't do her own Nexis research." The plaintiffs, who have been supported by the National Writers Union, are expected to appeal that lower court decision. ***** MEN'S JOURNAL (WENNER MEDIA), a writer reports, readily agreed to several important changes in a recent negotiation for an article: Pay on publication became pay on acceptance; free electronic use was replaced by an option that calls for payment at a negotiated rate; anthology pay was changed from "the Magazine's standard anthology fee" (which unfairly leaves the amount up to the publisher) to "a fee to be negotiated." ***** AMERICAN HEALTH FOR WOMEN (the retitled American Health, owned by READER'S DIGEST) reports that it no longer tries to acquire brief items as works made for hire. An editor tells ASJA Contracts Watch that most shorts are now done in-house, and that under a new policy, all freelance contributions--no matter how short--are covered by the standard article contract. "We no longer have a work-made-for-hire contract on the shelf," the editor says. And what of the long-overdue parceling out of writers' shares of electronic database royalties, called for by contract for several years but so far never paid? Says the editor: "With the transition in staff [a new editorial regime came on board early in 1996], we've been slow. It's very complex. But we certainly will make good on it." ***** NYCITYLIFE, a New York service magazine about to launch, lined up some experienced freelancers for its inaugural issue, then surprised them with a work-made-for-hire agreement. Several of the writers offered a surprise of their own by rejecting the contract. Consulting with ASJA, the writers negotiated several needed improvements, including a change to first use only, with an extra fee to be negotiated for any promotional use beyond brief excerpts. The result: an agreement that would make a decent boilerplate for the second issue. ***** MARIE CLAIRE editors know how to adapt the standard HEARST contract demands to make contributors happy. For one writer, an editor produced a photography agreement stripped down with penned-in changes. The final terms included first use in print only, with three months' exclusivity in North America, and world sublicense rights, exclusive for a year, for additional fees to be negotiated. The warranty was qualified as "to the best of your knowledge," indemnification was removed, writer's approval was added to the editing clause, and the offensive Hearst "additional provision" asking use in "all versions...by all means...whether now known or hereafter developed...in perpetuity throughout the world... anthology...online and other compilation services"--all "for no additional consideration"--was dropped. ***** Creative solution: CONDE NAST still orders editors to ram its article contract down writers' throats with only minimal changes, but at least one editor came up with a neat solution when faced with losing a story: Give the writer the agreement form used for book excerpts. Conde Nast, like some other magazine publishers, offers a different (and less onerous) deal when it buys rights to book excerpts. ***** Under its old owner, K-III Communications, NEW WOMAN editors did a good job of keeping contract-conscious writers happy with management-approved amendments that made a fair deal. Now, enter the magazines's new owner, RODALE PRESS, a company known for its mastery of recycling and a clear, simple approach to publication rights: Grab 'em all. Earlier this month, Rodale ordered New Woman to start using the company's standard contract, which includes several provisions that send savvy freelancers looking elsewhere for markets. Early reports are that some writers who resist are being offered slightly higher fees to sign--not a smart arrangement for freelancers. Will Rodale brass let New Woman's editors follow their tradition of working out reasonable terms with their contributors, linking separate fees to each extra right licensed? Or will short-term greed rule? Too early to say. ***** SUSSEX PUBLISHERS (PSYCHOLOGY TODAY, SPY and MOTHER EARTH NEWS) is under fire for authorizing book publishers to reprint articles--mostly >from Psych Today--and pocketing the fees, as well as keeping all the income from its deal with the Los Angeles Times Syndicate. Sussex boss John (Jo) Colman told ASJA Contracts Watch a recent New York Observer column "was set up to make the company look stupid. It implies that we were deliberately keeping money from writers, which is untrue. We owe people some money, but it isn't widespread. We've relaunched and brought three magazines back from insolvency. One problem with building a company quickly is that you don't always do things perfectly. We're sort of learning on the job." Hara Estroff Marano, former executive editor and now a contract editor-at-large for Pysch Today, thinks that explanation falls short. "After more than six years in business," she says, "you can't pretend you're a startup any more. You have to play by the rules and respect the writers." According to the company's lawyer, David Korzenik of Miller & Korzenik in New York, "In some cases the writer is due a share of the income, in some cases not. The contracts aren't all the same, so we have to go through them all. It'll take some time to clean things up." ***** BANTAM BOOKS has angered science fiction writers by changing its standard offer for its hugely successful "Star Wars" novels from the traditional advance-plus-royalties to a flat fee. The president of Science Fiction and Fantasy Writers of America (SFWA) has written strong protest letters to Bantam and George Lucas of Lucasfilm, both of whom defend the move as a "business decision." The unilateral change, president Michael Capobianco suggests, will drive the better writers away. Capobianco's letter to Bantam, co-signed by 15 SFWA past presidents, asks: "Surely you've heard the fable of the golden goose?" One informed sci-fi writer estimates that although Bantam is offering more cash for the flat fee than it has typically paid as an advance against royalties, a writer who takes the buyout stands to lose about a third of each book's ultimate author earnings. Bantam's president, Irwyn Applebaum, counters that the fees paid will prove to be "a fair equivalent of the majority of predictable royalty earnings" and that the authors will get their money sooner. Applebaum adds that he has "no expectation" of expanding the move to other sci-fi books. SFWA promises further protest. * * * * * * * * Many ASJA members and others send a stream of contracts, information and scuttlebutt so that these dispatches can be as informative as possible. Thanks to all. To receive each edition by e-mail automatically (and at no charge), send the following message: To: ASJA-MANAGER@SILVERQUICK.COM Subject: CONTRACTS WATCH Complete Text: JOIN ASJACW-LIST Only official dispatches: no feedback, no flooded mailbox. ***** Check Before You Sign A complete, searchable archive of ASJA Contracts Watch is available on the World Wide Web. Find it--with other valuable information and tips on freelance contracts, electronic rights and copyright--at the Web address below. ***** Inquiries and information from all are welcome. Contracts Committee, ASJA 1501 Broadway, New York, NY 10036 tel 212-997-0947 fax 212-768-7414 e-mail ASJA@compuserve.com Web page http://www.asja.org/cwpage.htm