by Pat Holt
Friday, August 10, 2001
FORCING WRITERS TO BUCKLE UNDER:
Not too long ago it was understood that a freelance writer, having published an article in a newspaper or magazine, kept the rights to that article and could sell it again to other publications.
But with the emergence of the Internet, newspapers like the New York Times have tried to retain the rights to freelance articles in order to place them with data bases and websites.
Background: The New York Times
Just a month and a half ago, the Supreme Court ruled against the Times, in Tasini v. New York Times, by stating that the Times "and other publishers had committed copyright infringement when they resold freelance newspaper and magazine articles, via electronic databases such as LexisNexis, without asking permission or making additional payments to the original authors," as the National Writers Union put it at the time.
Rather than make the adjustment to pay freelance writers for additional uses of the articles, The Times responded by telling freelances they had to sign a contract that granted the Times continued rights to the articles with no further compensation to the writers.
It's hard to believe the arrogance of the New York Times in thumbing its nose at the Supreme Court and forcing freelance writers to buckle under. Heaven knows that individual writers, faced with signing the contract or never writing for the Times again, have no power. As a result, the NWU and Authors Guild have responded with lawsuits of their own, stating that the Times' contract is "illegal and unenforceable," as the NWU puts it.
Enter AOL/Time Warner
But now word comes that at least two magazines in the America Online/Time Warner conglomerate are bringing the same pressures to bear on freelance writers. If AOL/Time Warner's other magazines follow suit and succeed, critics believe, independent writers will end up with very few rights left at all.
The two magazines, Ski and Skiing (purchased by Time Inc.'s Time4 Media division last November), sent letters on July 11 asking freelance contributors to sign an agreement in which "you hereby acknowledge that the Articles [written by the freelancer] shall be SKI's sole and exclusive property ... and that you convey and assign all rights, including copyright, in and to the Articles, to SKI, which may deal with them as SKI sees fit in its sole discretion."
Wow: Just like that. "During their more than 100 years in the business," Peter Kray, senior editor of Ski Press magazine, wrote this week, "SKI and Skiing have always bought first North American Serial Rights, a process that returns ownership of the work to the author after publication.
"Under the [new] work-for-hire agreement, stories published by SKI and Skiing would become the permanent property of AOL/Time Warner, falling in line with similar contracts in place at the company's impressive stable of magazines that include Time, Sports Illustrated and People Magazine.
"The difference is that Time and Sports Illustrated run stories that are predominantly written by magazine employees who have already surrendered all rights. The freelancers who fill the pages of SKI and Skiing are only paid upon publication.
" 'What [SKI and SKiing] want is to take somebody's article on ski instruction or boot performance and put it on their websites, hand it over to their computer animators or turn it into a script for the Outdoor Life Network without paying the writer a nickel,' said Claire Walter, an author and contributing writer for Skiing Magazine.
" 'This is a company that makes billions of dollars every quarter and they're trying to nickel and dime freelance writers out of their livelihood,' Walter said. 'It's just insane.' "
How insane could it get? In an email flurry of outraged comments, one editor's scenario doesn't seem at all far-fetched:
"Imagine how you'll feel if one day you discover, say from the Sunday Times, that your piece on skiing China has been made into A Major Motion Picture. And TW/AOL/ETC collected $250,000... while you got a sincere letter of thanks from the editor. Or, more likely, nada."
An Independent Publisher Speaks Out
"If AOL/Time Warner gets away with this, I firmly believe that within two years, almost every magazine in the country will be pushing the same contract," says Jules Older, editor-in-chief of Ski Press and Ski Press USA. "If they do, ironically, despite winning the Supreme Court decision (or rather, because of it), freelance writing as a way to earn a living may well disappear.
"According to the latest NWU study, freelancers are making significantly less every decade since the 1960s. That grieves me. But what sticks in my craw is the blatant greed that lies behind this law-flouting, steal-from-the-poor, screw-your-contributors contract. It makes me sick.
"That it starts with the richest, most powerful, and now most unscrupulous mega-media-organization in North America makes it all the worse. I'm the editor of a young, poor, lively couple of ski mags (a Time-Warner suit called us "upstarts"). Despite our relatively low spot on the print food chain, we would never send a contract like that. If I were ordered to (which, I assure you, I would not be), I'd resign rather than send it."
Dear Holt Uncensored:
[Re your reference to Bob Gottlieb:] He was an author and co-author. And editor. But not a literary agent. Bill Gottlieb is the literary agent.
Dear Holt Uncensored:
[Re your defense of Oprah Winfrey's selections in response to Cynthia Crossen's negative article in the Wall Street Journal:]
Oprah doesn't need support, but some of us need to consider that she has encouraged the social aspects of reading (as opposed to solitary reading). We read best and learn best how to read better when we talk with others about what we find in our reading; many of us have the experience of our learning tailing off after formal schooling. It isn't just because we are not being lectured to about books (also a form of social reading), but also because we have retreated into ourselves and don't know how to involve others in our post-school intellectual life. Schools could do a lot to recognize this and deal with it; Oprah I think, does.
Dear Holt Uncensored:
"...one that could effect the Bush administration..." -- tsk tsk
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