Conan O'Brien: Irish-American Mensch

According to Variety, Conan O'Brien is doing as Dave Letterman has, keeping his non-writing staff on payroll. The only difference is that the Letterman's crew actually works for him, as he owns the production company. O'Brien doesn't, but is dipping into his own pocket to keep them paid. I'm a bit mixed as to whether he should have helped the writers - who have only gone on strike because they're tired of getting screwed by studios. But, hey, he's doing a lot more than most individuals, and businesses, are.

Freelance Class Action Settlement Gets Tossed Out

Word came out late today that the US Court of Appeals for the Second Circuit, in a three-judge panel, has vacated the settlement approval and sent the matter back to the District Court, calling for "proceedings consistent with this opinion." (Thanks to the Authors Guild for notifying people and publishing the decision, and for reader Debra Cash to have passed over word.) Here's a key point of the decision:

We have held, albeit outside the class action context, that district courts lack statutory subject matter jurisdiction over infringement claims arising from unregistered copyrights. ... The District Court never specifically addressed this potential jurisdictional flaw.

As the decision notes, this issue had come up during mediation - the defendants in the class action (the publishers) arguing that the Copyright Act states that "no action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.” And then the publishers argued that the District Court couldn't a case covering any unregistered works, let alone such an overwhelming number.

It was the desire on the publishers' part to get out of the mess that brought them to agree to include non-registered works. Unfortunately, "[t]he District Court never considered whether it had jurisdiction to certify a class consisting mostly of claims arising from unregistered copyrights, or to approve a settlement resolving those claims."

I'm no lawyer, but this is about as bad as it could get. The issue now is not whether the authors with unregistered works have been adequately cared for, but whether any of them can sue to get anything. The answer is no, and all the arguments that some have made about the total value of the infringed works being a billion dollars or more go completely out the window. The people with registered works could get together and sue, if any of the lawyers are still interested. The groups involved in the suit and settlement could also appeal to an en banc hearing of the Court of Appeals, meaning that all the judges sit to hear the argument. At best that's going to add, what, another year? And there's no telling how it would come out.

One judge did dissent, citing some recent cases that the technical underpinnings of the majority decision might be wrong, and that the need for registration might only go so far as "a cause of action for damages, but not a prerequisite to the possession of constitutional standing [to sue]." It seems like a strong argument, but will everyone keep going? At this point, I don't know.

I've disagreed with the objectors for various practical reasons. I know and like a number of them, consider them colleagues and friends, and understand the abhorrence about the default loss of rights to writers. But I've been concerned - and have argued in various places - that for the settlement to get tossed would end up becoming a de facto green light for publishers to do as they want and to ignore the vast number of writers who hadn't registered copyright.

What we are seeing now is a classic case of good and noble intentions on the part of most bringing unintended consequences. By objecting, they opened the case to review that has overturned the settlement on grounds that were never brought up in the objection. The practical outfall, I fear, is that the settlement is over and no one will get a penny. That, in turn, will embolden the publishers, because any retaliation would be virtually impossible.

Contract Review: CreditCards.com

Here's my review of the CreditCards.com publishing contract, forwarded by a reader who wanted my view. As always, please remember that I'm not a lawyer and this is not legal advice:

• A and B. Although not a draw-back, per se, realize that this will govern work going forward. If you think to yourself, "Maybe I can get this changed in the future," you leave the door open for them to say, "We're already set with a contract, so that should do."


• 1. You are granting exclusive license to publish the article on their own web site or in their own publications or in any other. You cannot resell the work. They can license others to use the material, as well. Also, you're selling the right to claim copyright, and it's work made for hire. You can't do anything with any of the articles you write for them in the future.


• 2. Payment is in US dollars within 30 days of their acceptance - and that's on its final edit, whatever that means and whenever that happens. More realistically, they have 30 days to accept and then 30 days to pay, so that's up to two months after submission.


• 4c. You guarantee that you won't infringe on anyone's rights under Texas law. I'd think that would have to include federal law for copyright to make any sense. But you'd better be aware of what under Texas law might be an infringement of rights, or add that it has to be a knowing infringement.


• 4e. Again, you have to agree that you won't libel someone, infringe rights to privacy or publicity, harmful enough to expose the publisher to a suit, or otherwise illegal. Again, better know these specifics under Texas law.


• 4g. Factual statements should be true within the best effort of the writer to know. Your research might seriously suggest that something is right when it actually isn't. Get it wrong, and you're breaching the agreement. Generally, I like indemnification to kick in only with an actual breach of the warranties, and not for just any "violation," which is what they tack on.


• 8. This is a crock. You are agreeing that either the negotiations or much of the work happens in Texas, which simply may not be true. You're agreeing that any legal dispute gets handled in Texas, which puts you at a disadvantage. What if you have to sue to get money?


• 11. The contract specifies a kill fee of 25%, but doesn't say when they publisher can opt to do that, other than when rejected. But it should be rejected for not meeting professional standards or the details of the assignment. They shouldn’t have the flexibility to do that if you've actually performed under the contract.

As always, I welcome readers to post about their experiences, to ask questions, or to submit their own contracts. The only requirement is to be a subscriber to this blog and to recognize that I will post my review (without any information to identify you).

Writers Must Be Reporters

Over time, some colleagues and I have noticed how many freelance writers, who have never worked in more traditional forms of journalism, don't think of themselves as reporters, and that's a pity. In my view, at least, there is an obligation for writers, whose work will appear in newspapers, magazines, and books, to focus on more than just the cleverness of their prose, or the invoice that accompanies it. The heart of any writing is its subject: the story. To get the story right means getting the details right. Not that I'm of the school cheering for mindless piles of verified detail as a form of story in itself. But if someone is going to make claims, then the writer has the obligation to do at least a little verification and apply a modicum of skepticism. When there is a mistake in a story, the writer should take it seriously, and, if the source of the error as gatekeeper, feel he or she let the reader down.

I've recently had the experience of some sources responding to Profnet queries and touting themselves as experts, citing their books. A little investigation showed two being self-published and another the client of a service that helps public speakers produce books to extend their platform. In principle, I have nothing against self-published authors. Many wonderful books had their start that way, and I've seen useful work from people who were truly experts in their fields come out of such production. But that is the exception these days, when people want instant credibility to further their careers. If someone cannot get a traditional publisher to take on a title, you should at least ask why. If not, you act as a PR outlet for the person.

When you blindly note every claim someone makes and one turns out to be wrong, you have two problems. One is that you've shirked your professional duty, and may have ruined your credibility with that publication. The other, as I've seen by friend and colleague Randy Hecht point out, is that you continue developing habits that will keep you from reaching the professional heights you otherwise might.

Debra Cash, a colleague and reader of this blog, had sent me a link about how the contracts for reality television shows can read. The author of the post, Joey Skaggs, is known as a media prankster, undertaking political and social commentary by making reporters look like fools. In his case, at least, he says that every communication he has with reporters contains at least one clue that they are being hoaxed. However, the vast majority of people who want to use you - whether would-be expert or corporation trying to burnish its market image - won't be so intentionally kind. That is why vigilance is the first step toward superior writing. As any chef knows, when the ingredients are good, you're 80 percent of the way to a good meal.

Newspaper Industry Boasts Online Ad Growth

Another data point that I pass on as they come in: the Newspaper Association of America in a report claims fourteen consecutive quarters of year-over-year double digit growth in online advertising revenue. Online ads now represent 7.1 percent of all newspaper ad revenue. However, overall ad revenues in the third quarter of 2007 were down 7.4 percent, so even the fast percentage growth in online ads is nowhere near enough to keep newspaper income even flat.

Another View of the WGA Strike

Here's an interesting take on the writers' strike from an industry analyst viewpoint. Seems that some number of industry people may actually agree with the writers. The really intriguing point, though, is that the strike could have some unexpected results, like causing the studios to spend less on speculative ventures (and they put a lot of money into those), which could, ironically, turn into less money for the writers. Instead, writers will end up becoming the entrepreneurs.

Amazon Kindle and Controling Electronic Rights

By now you've probably heard about Amazon's Kindle e-book reader. I've been thinking a bit more about the economics of it. According to one knowledgeable colleague in a private writers' mailing list, Amazon takes 65% of the money it receives for e-books and the other 35% goes to the publisher. Large publishers are probably getting a better deal - I hope they're getting a better deal. But better deal or not, this is a significant development and one that should command attention of freelance authors. So let's comb through the readily available information to see what we can learn:

• Although journalists are saying that 90,000 books are available, that's not how Amazon phrases it. Instead, it's over 88,000 books, with 100 of the current 112 NYT best sellers. (Who knew there were that many on the various NYT best seller lists - something that is interesting on its own.)


• The screen uses reflected light, and not a back-lit approach, and it only uses power to change the image on the screen, so it should have far longer battery life than other devices.


• It's $400 bucks to the user. Add in the 65% of the sales price it gets, and that seems like a lot. But, the device uses a cellular phone network for browsing and shopping, and there are no monthly fees, so some amount of that money has to go to the carrier providing the service, and has to potentially last a long time. That might explain some of the economics, and why publishers/authors aren't likely to get better deals going forward. Amazon may not be able to afford to give them.


• NYT best sellers and all new releases are "$9.99, unless marked otherwise," which is like saying everything is a dollar unless it's not. That low a level of pricing has two effects. One, it potentially hurts the preceived value of books, and, should this take off, puts competitors into some pretty serious trouble. Do they start more heavily discounting? Because even with the lower price, Amazon makes a bundle. Figure a best selling paperback costs $15. Amazon, or one of its normal competitors, gets maybe a 55% discount, but probably knocks off 30 to 40% of the cover price, so it getting 5% to 15% of the cover price. That's $0.75 to $2.25 a a copy as gross margin (money left over after they pay for the copy). But 65% of $9.99 is $6.49 - a heck of a lot more in their pockets. They say that it takes less than a minute to download a title, so take out, what, 50 cents at most to the cell carrier, figuring that they have to cover all the times that someone doesn't buy? That's still profit to make them drool, and it lowers warehousing and processing costs.


• If Amazon is making out like a bandit, what happens to the publisher/author? They get 35% of $9.99 (for that category of book), or roughly $3.50, rather than the $6.75 they would have received. So take out $2 for printing and warehousing, and that's still $4.75. Guess what that means? Publishers will want to pay authors even less for these rights. It becomes smart business to insist on keeping the electronic rights - probably difficult without some leverage of good sales history, but important to try anyway, because with contracts going the way they do, that means the author will get 12% of the new lower price (that paperback trend of getting royalties on money received), or a whole 42 cents per book. Sell 100,000 copies electronically, and you see $42,000, which is chicken feed given the popularity.


• Some money must be split with newspaper publishers, because you apparently get wireless copies of the NYT, WSJ, Washington Post, Time, Atlantic Monthly, and Forbes. No mention of subsciption costs to these. And you get international newspapers, as well. Guess what? That means more pressure on costs - including writers fees - across the board.


• There are some significant drawbacks to the business model. You don't sync the machine with a computer, so how do you store the titles you aren't keeping on the machine? It's also a proprietary system, which means it could leave people with the feeling of being locked in. Then again, I used to think that about the iPod, but I was clearly wrong there. So there is a chance that the publishing industry will get locked into this, whether it wants to or not.

In other words, it's not going to be a pleasant business model, but you may have to deal with it. Better figure out how to without losing even more income to all the other businesses that want a cut so they can make money. Best new mocking nickname of the system? The Swindle. Question is, who's getting the worst of it - reader, or author?

Making Sure to Get Paid

There was a recently extended discussion on Freelance Success of troubles in getting paid by clients. I'm not going to pretend that I never have to chase payments - everyone does every now and then. But I do minimize it and reduce the amount of time to get a check with the following steps:

• Ask About Paperwork Right after geting an assignment, ask about the paperwork you'll need to provide. The company will need a W-9, unless you've worked with the client before. You may need a contract to get paid, or not. But make this part of what you ascertain when talking about pay rates, deadlines, and rights license.


• Talk To Account Payable Shortly after you start the assignment, it never hurts to talk to accounts payable, ask about what they need, which can differ from what an editor or corporate representative thinks. Particularly ask about what the company will need on an invoice. Do you need to include social security number? Is there a purchase order number that you have to include? Are there specific addresses or division names that must go onto the invoice? Get all this clear up front, because the people asking for your services may actually not know what they're supposed to do.


• Start the Clock When you submit the assignment, or any milestone part, submit the appropriate invoice. If the client wants changes, you can provide them, but maximize the chance that the receiving person must have received the invoice. If they got the work, they got the invoice, so long as you send the two in together.


• Check on Progress This can be a bit sticky. You must not be beligerant about it, because that will be off-putting, and people might delay processing your invoice out of irritation and spite. But you want to find out whether the invoice is in process and when it would be scheduled to pay. You must ask accounts payable about this. Your editor or client doesn't want to spend the time finding out, and they won't know and might lie because they are embarrassed about not knowing. The accounts payable contact might say that it isn't yet in the system, so try back in another week or two.


• When Things Go Wrong Notice that I don't say if, but when. That is because, even with the best clients, sometimes that will happen. If you hear that the invoice hasn't been received yet, you might want to talk to your business contact, mention that accounts payable didn't have it, and ask how long processing generally took, letting the person have the out of saying that accounting lost the invoice. Sometimes accounting does screw up and tries to blame others. In my experience, more often it's other people who don't do their end of the paperwork and try blaming accounting. No matter what the situation, you don't care. What you want is a check in a reasonable amount of time.


• Making Friends Notice that I keep talking about contacting accounts payable. You want to make friends with accounting, because they have the best chance of telling you where things actually are, and when the check will arrive.


• Don't Wait I've said this in a number of ways so far, but will underscore the importance of not waiting until money is running late. Until you know how a given organization runs, assume that you need to check on them - and even when you know them, keep tabs on how things are going, so you can tell when something is going wrong for whatever reason. That recently happened to me with a good client that got a bit confused over the number of invoices that had some in over a short period of time and which ones they had paid. I was able to help straighten out the situation, and they got payment out right away.


• Squeeky Wheel When things aren't going right, do not - I repeat, DO NOT - nicely go off. Be pleasant, but stay on top of the situation and be sure that you get the answers you need. If you are persistent, they will get you what you need to keep from getting another call. If you aren't getting answers, then keep calling - using whatever code you need to eliminate caller ID from telegraphing your identity - until you reach someone.

I'm not going to talk about what to do when you can't get paid, as that's a different issue. Instead, focus on how you can get others' business processes to work with your needs so most of the money you are owed comes as quickly as you can get it.

When Were They Going to Tell?

Every now and then I find myself getting angry because for years publishers said, "We have to go cheap on the web because we're not making money yet. When we do, we can pay more. Hope you understand." But consider what many signs are telling you. Rupert Murdoch is someone disliked by many journalists, and he has his own agendas, but I've never heard anyone call him a stupid businessman. He's planning to make the Wall Street Journal free online. Why? Because he'll make more than the revenue from the estimated 1 million subscribers - which, given the subscription rates, has got to be at least $50 million a year.

Read that number again. And he expects to get far bigger audiences to make far more money.

When I wrote about questions I had on newspaper readership, it was clear from the numbers in the Newspaper Association of America-sponsored report I cited that newspapers are getting millions of visitors a month. I still think that in the long run they are not going to be monetarily valuable clients for freelancers, but how much are each of those people worth in annual advertising revenue?

And if you look at this Mediaweek article, Time Inc. apparently has been doing very well on the web:

John Squires, executive vp, Time Inc., said that while he’d like the company’s sites to “crawl up in terms of scale,” he’s happy with their rank in engagement and revenue per user. Speaking today at a Time Inc. Digital Showcase, he noted that according to Time Inc.’s own ranking, the company’s sites come in 15th among media companies in terms of time spent per visitor.

Happy with revenue per user? To me, that generally means that someone is making a good amount of money. Newspapers and magazines see pretty serious revenue from the web. So when were the publishers going to admit it to the writers?

Never. They don't want to pay more. They're very happy to have driven down the cost of content, because that means they have higher margins, which are the difference between what products and services sell for, and what they cost to produce or acquire. And I suspect they're not telling the editors, either. Why? Because right now the editors for online work are also making less than their print colleagues - which is also fine with the publishers, because that pushes margins up even higher.

That's what gets me angry - the con game. Just when were writers supposed to be able to redeem the promise of more pay for concessions made? Again, the answer is one word: never. I do understand the publishers, but don't like what I often hear, and I'm not going to buy the line anymore.

Another WGA Lesson

Those who have heard me talk for, oh, five minutes and who haven't dozed as a result know that I've been beating the drum for how writers need to become their own publishers. Well, that's another lesson we all can learn from the Writers Guild strike. Check this LA Times piece. NBC has decided to air a show that started on the Internet. Why? Because it hasn't been on television yet. (Does that mean it hasn't existed any more than the tree out in the forest?) It's already produced, so isn't affected by the WGA strike - and probably won't be, because the writers own the damned stuff!

Read the LAT article carefully. A number of recent movies that have done well were financed by outside money people - and largely in control of the writers:

Being entrepreneurial isn't for the faint of heart. If you want a sweet upfront paycheck, you may not have the stomach for it. But after seeing studios bowdlerize their scripts, many writers will swap a big payday for more control. [Writer-director David] Twohy says that after Relativity read his script, "They told me, 'Script approved as-is.' I've never heard a studio ever say that."

I don't mean to be insulting or to belabor a point, but are you getting this yet? Writers can find ways to control their own work. The reins are slipping out of the fingers of those who traditionally controlled them.

What does this mean for the type of freelance writing you do? It's time to consider what you might create that a major publisher won't buy. No, you probably cannot afford to go off and do it full time without an investor. But what if someone did invest? Or what if you did it on the side, much the same way that some popular novelists who make boatloads now started by writing in the mornings, before heading to their 9-5 job?

Maybe you start with a blog and begin building an audience. Maybe you write something really good and go after book clubs to pick up your self-published title, sending free samples to those willing to consider it. Maybe you develop a site that will eventually support advertising. Don't expect that the money will roll in from day one. If you are going to be an entrepreneur - which, by the way, you already are, whether you realize it or not - then you have to start thinking like one. Real payoffs don't get offered up front. You invest your time and energy and take the compensation farther down the road. Some things you try will be a bust. Maybe some won't. But it's a hell of a lot better than passively griping about bad contracts, low pay, committee editing, and one-sided contracts.

Realistically, very few writers will start down this route. Most will look for safety. But it's the safety of a cage left on the beach, and the tide is coming in. The only safety in the long run is breaking out, building a boat, and learning to sail.

Review: Belkin Mouse Trap, Cruzer USB Memory

Here are a few suggestions for when you're traveling - or if you need gift ideas for the person never seen without a laptop. The first product is the Belkin Mouse Trap. No, it's not a staging for the Agatha Christie play, but, rather, a handy small case. I know I'm not a big fan of touch pads, and when I remember to, bring a travel mouse with me - something small that I can move about and whose buttons I can click. But the problem has been finding a surface that works well with it, as even when I do remember the mouse, I don't remember to bring an extra mouse pad.

That's where the Mouse Trap comes in. It's got a semi-circular shape with a zipper on the outside. You can store a USB cable or two, even a travel mouse, zip it up, and slide it into your laptop case. Why bother? Not only do you have some of those little knickknacks that you may need, but when you unzip it, the case opens up and offers ... a mouse pad surface. There's a circular strip on the outside of the case that helps it stay in one place while you slide the mouse about. Retail price is $12.99.

USB memory sticks are pretty standard fare, but I've been using a SanDisk Cruzer Titanium (not actually made out of the metal) for a while. There are two reasons. One is that the USB connector on the model I have actually slides into and out of the case, meaning that I can't lose the cap, which leaves would leave the connector exposed. The other is the synchronization software. I can sync the Cruzer with my copy of Outlook, and then let me run my emails, calendars, contacts, and so on from the Cruzer. In other words, I get to take important parts of my computer with me while the computer stays in the office. It's the digital equivalent of "I went to a big conference in a fabulous city and all my computer got was this crummy t-shirt." List is about $35 for the 1GB version, $50 for the 2GB, and $100 for the 4GB.

If you already have the USB memory, then I've heard about synchronization software that might interest you, although I haven't had a chance to try it yet. It's called MojoPac. There's a free version and a higher-end consumer version that runs $49.99. I don't know all the details, but you can check them at the web site. At worst, you download the free version and find that it doesn't do what you need.

Contract Review: Scripps Networks

Someone sent a copy of a contract for Scripps Networks - owners of the HGTV, Food Network, DIY, Fine Living, and GAC cable channels and their associated web sites. I had seen one of these when I reviewed contracts for ASJA's Contracts Committee and am sad to say that this one isn't much better than what I saw then. Although, as usual, I cannot reproduce the contract itself (that being a copyrighted work), I will offer a paragraph by paragraph analysis, where I have something to say. As always, please remember that I'm not a lawyer and that this isn't legal advice:

• The Work This is the graph that describes what the writer will produce and notes that the writer works how he or she wants. It also states that SNI (Scripps Networks) "has the sole discretion to decide whether, when, and how to publish, display, exploit, or otherwise use the Work." This sentence will be important later in the contract.


• Fees This sections specifies the fees and also notes that it will pay within 30 days after all of the following occur: the Work comes in on or before the due date, or after with written permission, SNI decides that it's acceptable, and the writer sends an invoice with various bits of information they want, including an "issue date," which seems odd if you're working for the Web. (So far as I know, they're not publishing printed materials.) So, it is possible to submit late if you have written permission from an editor, which is certainly better than having a "finish by the due date" and no provision for an editor to agree to extend a deadline. It makes me wonder what would happen if a writer sent an email about a problem and couldn't get a response, as often happens with editors. If it came in a day late, although the writer had been asking the editor and not hearing back, would there be any grief? I don't know, although if they accepted the piece, I don't see how they'd get out of paying.


• Term/Termination One big problem here is that SNI can terminate the agreement "with immediate effect upon written notice to Writer, either with or without cause." In other words, if they change their minds on an assignment, they can leave you out in the cold, with no compensation for whatever time you've put in. Now, it could be that you could successfully sue them, but that would mean time and money to bring the action. This to me would be a deal stopper - and not the last one in the contract.


• Grant of Rights They want work made for hire, but they also run down extensive lists of rights, probably so that if the article is declared not to be a work made for hire, they've covered themselves. But they also get rights to use your name, likeness, and biography, not just in promoting the article, but "publications, information products, services, and merchandising." So, if you have something that hits really big, you could end up being used in promotion for derivative works, even though you don't see a dime.


• Kill Fee Another nasty area. If they decide not to accept the work, they pay you 50%. However, they have some outs: if they can say you changed the focus without prior written permission (in other words, get any changes in an email, at least, and not over the phone), if you don't submit anything, or if they decide that the work isn't up to snuff. Now, the real kicker: "Payment of the Kill Fee in lieu of the Fee shall not impact SNI's rights to the Work under this Agreement." Yes, read it again - if they pay a kill fee, they still own the work! So they can cut you loose and still do with it as they like.


• Cooperation Not sure that's the exact word I'd have used. Maybe serfdom. The agreement mentions submitting resource materials "including but not limited to" source names and contact information. Notice "not limited to?" That probably means they could ask you for notes or recordings. They can have you revise the writing with no limit on the number of revisions. The "not limited to" language comes up in supplying information for captions, sidebars, and headlines. So, you could end up writing a sidebar without any extra money - and who knows what else could be included under this phrasing?


• Endorsements From an ethical standpoint, this one might get your eyes crossing. If I read this correctly, so long as the writer meets certain conditions of getting to use a photography, he or she can actually take money from vendors to include that company's name in photographs! Huh?? SNI doesn't have to use the photo, but, come on, what kinds of standards is the company setting? At least they're not demanding that writers be pure while they wallow in perfidy under gleaming red lanterns.


• Warranty This reads worse than you might initially think, so keep in mind that the entire contract is construed under New York State laws. There are pretty broad requirements that you not infringe on copyright, personal or proprietary rights, right or privacy or publicity, moral rights, or any other right of a third party, and that the Work won't have any libelous or scandalous material. Libel and copyright infringement guarantees are fine under NY law (it's not like someone can claim libel under UK laws in this for indemnification to kick in), but moral rights? That might be a problem if you're doing something on a visual artist and somehow make them look bad in the context of their work. Publicity or privacy? As I have heard before, they won't modify this to include a "to your knowledge" type clause, even though they have an immensely broad set of warranties and most writers (including myself) are not going to be up on all of these enough to know if they might have crossed a bound or not. The hold harmless clause is far worse, though, because it applies not just to an actual breach, but to an alleged breach, so if you've been damaged, you have no recourse against them. Also, you have to hold harmless for "any claim or potential claim in connection with the Work." In other words, even if it doesn't come out of the warranties, you're still stuck. What happens if SNI breaches the contract? I think you're agreeing that you can't sue for damages. You waive moral rights - not available to US writers, but a consideration for any in other countries, and SNI isn't "obligated to pay any third party any amount in connection with the Work, including, without limitation, Suppliers." I'm guess this is to keep them from being liable if a writer gets a product on loan and doesn't return it, but it would leave me wondering if I could get screwed over legitimate expenses in connection with a piece. More deal killers.


• Indemnifications Like the hold harmless clause, you now have to indemnify them both for real breaches and alleged breaches of your warranties and for any claims that come about from the Work or the Agreement. I think that would mean not only are you responsible if someone sues them, but if there is a disagreement between the two of you, you get stuck with everyone's legal bills. Now, I could certainly be wrong on that last part, but even if I am, indemnification for alleged breaches or for any claim arising out of the article is another deal killer.


• General Provisions This agreement supersedes any other, so no matter what an editor says to you, it means nothing if it's not written down here.

One deal killer after another and pay that only slightly breaks $1/word translates, to me at least, as "Please, no informed and intelligent independent writers who have any regard for their own interests or welfare." Sounds like good advice - if you have the urge to do business with them, find someone who pays more and will treat you better.

Review: Pyramat Laptop Sound Booster

I had some products recently cross my desk for some articles and thought that some of them might be of interest to writers. The Pyramat Laptop Sound Booster is a quasi-portable device that acts as a combination lap desk and laptop base with a couple of built-in speakers. You can connect a laptop to it via a USB cable. Instead of the laptop, you can also connect an iPod or other MP3 player. The speakers significantly boost sound - I found that they completely outshone the speakers built into my hefty Toshiba Satellite. There was some vibration in the base from the sound, but not unpleasantly so. And the base acts as an insulator, so your lap doesn't get too hot from the machine.

When paired with a laptop, the USB cable pulls power from the machine, or you can run it off batteries when paired with a music player, letting you listen to music if working longhand. They tout an "ergonomic design," and I found it comfortable enough to use. (I often take a laptop down into the living room for a change of scenery.) Sharper Image has them for about $90. It's too large to throw into your laptop case, so if you want to travel with it, expect to make room in your suitcase. If you use your laptop extensively, enjoy listening to music, and want to enjoy music you've ripped from your CD collection or downloaded from the Internet, this is a decent way of doing so without having to wear a headset.

When to Fire the Toxic Client

I've seen some online discussions lately about firing "toxic" clients. As in any other business, when providing writing services, there may be times that you find a given client a major problem. It could be for a number of reasons, including any of the following:

• abusive contact person


• offensive contact person


• client demands are continuingly unreasonable


• client wants you to act unethically


• payment habits cause you financial problems


• client disorganization overly affects your work schedule

Notice that a number of these factors - or others you might think of - require a judgment. To receive offense, one must be affected by the conduct of another. Unreasonable is what strikes you as such. Payment habits that might affect one person's business might not be a problem for someone with greater financial resources. In short, often the toxicity of a client has just as much to do with how you perceive the behavior and react to it as it does with what the entity or person is doing.

How you handle the tocis client will depend on the circumstances. It might be that you can get a person to change behavior enough to be tolerable. That sometimes is possibly with the behavior of the company itself, not the contact there, although getting a company to change is generally far more difficult.

If you can't get a change and the client, for whatever reason, continues to grate on your nerves, then you need to cut them loose. When and how you do so depends on just how much the client affects you. If the client is such a problem that it drags everything else down in your business or life, then they go immediately, even if you find it finanically inconvenient. If you don't, it could potentially depress the rest of your business, to say nothing of you.

That should be an exceedingly rare situation. If the circumstances aren't so dire, then you find other clients first and then phase out the problem one, so your income doesn't take a beating as a result. This becomes part of your ongoing strategy to keep the best clients and develop new ones, phasing out those that no longer meet the needs of your business. there are people who will tell stories of ridding themselves of a problematic client only to have replacement work show up of its own accord. yes, this does happen sometimes, and it may be that when you're not so wrapped up with a problem, it's easier to see opportunities when they present themselves. But be wary of impetuously dumping the work you don't want under the assumption that something better will come along. It's my experience that this happens when you've laid the groundwork for more work to come in.

Now for the really big however. I've known writers who always complained about this abusive client or that unreasonably one. There would never be a time when someone wasn't being unreasonably offensive. In my experience, and that of most successful writers I know, such problems should be the rare exception and not the rule.

In business - and in dealing with people in any aspect of life - it's important to develop the stomach face the imperfections of others, just as you might hope they would forgive and manage wtih yours. Just because someone seems rude or demanding on a given day doesn't mean you should get caught up in unnecessary drama. There should be only a handful of times in someone's career when a client is so bad that it must go immediately. If you find yourself seething on a regular basis even as you replace clients, then the problem may be closer to home, and not with the low quality of customers these days.

More Market News for Magazines and Newspapers

Here are some additional views of the journalistic markets. When you want to get an idea of what might be happening in the publishing world, it's good to listen to media buyers. They are the ones who decide where to put ad dollars, which drives the size and very existence of publications. As with most of us, their perceptions become their own biases, because they'll make decisions based on what they think is happening.

So take a look at this Media Life article, reporting on its own survey of media buyers. In particular, look after the discussion of House & Garden to the categories of magazines perceived as most in danger, where some titles might end up closing:

• newsmagazines


• teen


• celebrity


• business and general interest

These are far from universally accepted among the buyers in the surveys, but it's still worth considering. For example, almost two-thirds of them (and, unfortunately, I don't have details of how the survey was done, which can greatly affect the results) expect a shakeout in the newsweeklies, with US News & World Report being the most likely candidate for closure. Strongest and weakest titles among celebrity titles? People was far out front, with Us far behind. And consider this sentence: "The rest, In Touch, Life & Style, OK! and Star, hardly registered [in perception as strong titles]." In other words, once you're past Us, safety among the famous drops off. More tidbits in the article.

On the newspaper front, we have an article from Rich Edmonds, a media analyst, at Poynter Online. He notes that while newspaper online advertising revenue growth has been the bright spot of the industry, it has been feeling a significant slowdown. As he notes, part of it owes to the calculations of growth percentages: as the total gets bigger, the percentage any addition represents is smaller.

But this so-called “law of large numbers” is not the whole story. As for the rest, "it is all to do with classified upsells," analyst Paul Ginocchio of Deutsche Bank Securities, wrote me in an e-mail. Classifieds are the leading edge of the bleeding in print advertising, with losses substantially worse than even pessimists had forecast for 2007. Unfortunately, as Ginocchio notes, classifieds typically make up about 70 percent of the typical newspaper site’s online ad revenue.

In the view of Edmonds, newspapers will need some significnatly new strategies - not more porting paper to pixels. He has some observations and recommendations worth reading. As always, no single piece of information should determine your business strategy. But, put together, they help to give some view of the near and mid-term futures of your industry.

Using Blogs to Find People

Ever try to find a high-profile person? One technique that often works is to search on Google for the person's name in quotes along with the word blog. With some luck, the person will have a blog that will, in turn, have a way of contacting him or her. If not a blog, see if the person has a web site with a contact form. Over the years, I've directly reach people ranging from Scott Adams to Susan Orlean using similar techniques.

The NYT on Economics of Television and WGA Strike

The New York Tiems has some interesting pieces, with different takes, on the WGA strike, and I pass them along as worth reading. One, on how superstar producers, directors, and actors, are sucking much of the profit out of the movie system, may or may not be completely accurate. It's based on a report completed for an analyst firm, but by a former studio person, so there might be some bias in the analysis. Then again, it might be accurate.

This article shows how the image of Hollywood writers being highly paid is a generalization based on a few big names. Most writers, it asserts, are getting by, but hardly rolling in dough. And here's an article on how the writers are finding print and web outlets while they wait for their work to get back to the screen. Just what you wanted: more competition.

WGA Strike, Corporate Control, and Pushing Writers Out

I told myself that I'd take today off most of my blogs, including this one, but the writers' strike in Hollywood continues to beckon, and time is a-wastin'. Although most people reading this blog are unlikely to be WGA members, the strike and the issues there are important, because they tie in very closely to what freelance non-fiction writers are facing, often from the same large parent corporations.

The issue between them is that the writers want a share of the Internet revenue and the studios absolutely refuse, saying, "Oh, we're not making any money, it's just promotional." That is so much hogwash. They may be making little profit - though you never can tell with the accounting tricks studios are notorious for employing in their attempt to keep every possible dime - but they are making money. It may not be much in comparison to what they make through more traditional distribution, but it exists. If they get to distribute programming without a cut to the writers on the Internet now, because, hey, they said they weren't making anything, then that fiscal arrangement will never change.

That's the way the studios would like it. What happens when television is delivered over high speed Internet connections? Voila - no royalties to writers! What a way to boost the bottom line.

The problem, if you ask Alec Baldwin, is that Hollywood is largely in thrall to people who don't understand how to make compelling entertainment. They want guaranteed results without risk, which, in business, is like saying that you want to make scrambled eggs without cracking the shells. Shy of a science fiction novel - product of a writer, of course - in which you remove the egg through a fourth-dimensional twist past the three-dimensional shell, it simply will not happen. Business is the controlled use of risk to get a return on capital, and what makes it more dependable than out and out gambling is that you have people at the top who understand their businesses and how to make decisions that minimize risk and maximize pay-back.

To accuse writers of greediness for wanting to make a profit - as Damon Lindelof, co-creator of Lost, suggests - has a doubly-bitter irony. As Baldwin says, the studios are blaming the writers for their own screw-ups. In addition, they're trying to vilify the writers for wanting to make a profit, which is just the thing the studios are trying to do, only they want to increase their share by decreasing even the tiny portions going to others.

And now back to freelance writing as you and I know it. Publishers have been saying, "Oh, we can't pay for the web." As I've pointed out, that is nonsense. They're developing new publishing enterprises requiring investment. But because they hadn't been operating them at a profit (not sure that is true any longer), they wanted the writers to take give up their compensation. Do the web hosting companies provide bandwidth for reduced rates because they publishers are trying to start new types of businesses? Do they get free electricity and computers and storage and software? Nope, they don't - they have to pay for them. But without the content, they have nothing to store, to run through computers, to send over the Internet pipes, and to land in someone's browser.

They also want free use to adapt articles for television, to read entire books on satellite radio, and to do anything else that makes money. The publishers have two realistic choices, if they want to continue to have content that will actually attract people, and not crap churned out by people happy for their name printed somewhere, but who cannot deliver in the long term what makes for a working business model. They can give writers a cut of what they make, or they can pay writers enough up front that they can afford to be more generous with rights.

However, the current approach - saying "Sorry, but we need more and have to pay you less" - cannot work over the long run. Of course, by the time it gets really screwed up, upper management hopes to be out the door and into retirement, leaving the problems for the next generation, as well as the shareholders of the companies. Perhaps it's time for the shareholders to realize that although things may look good in the short run, they are going to be losing far more over the long term. Perhaps they should insist that many of the magazines, particularly the big consumer titles, stop burning money in all the ways they do that anyone who works there or deals with them knows. Paying the writers would be nothing in comparison, and the return could be tremendous.

Shuttered Magazines and Their Running Web Sites

Yesterday it was looking at newspapers, and today an interesting piece in Folio about magazines closed by publishers that decided to leave the web sites up. As was true with the newspapers, the data is from Nielsen. This time we don't have the average time spent. The data below compares the date the magazine was shuttered (2007, unless otherwise stated) to the number of unique visitors for August 2007 (unless otherwise stated):

Site	Mag Gone	Visitors
NickJr.	February	3,260,000
Child.com	March	534,000
Cracked.com	February	365,000
ElleGirl.com	April 2006	358,000
InfoWorld	April	559,000
StuffMagazine.com	October	223,000 (July)

Without the time being spent, it's hard to determine whether people are seriously using these sites or just breezing through - the former meaning a better chance for the necessary advertising dollars. But it's interesting how many people some of these sites are bringing in even after the magazine itself closed. What would be really interesting to know is wht their revenues and profitability were compared to the print days. My guess would be that revenues are significantly down, but that profitability may not be - after all, why close the magazine and keep the web site open if you were a publisher and didn't think the site was adding to your bottom line?

The difficulty for writers is that the publishers have set an expectation of lower pay on the web, as they constantly complained about having to invest all this money into it. Well, of course they did, just as tradtiaional big consumer magazines can lose tens of millions - otherwise known as investment by the publishers - until finally turning a profit. Only, writers are getting suckered into underwriting what the publishers are doing. That can't last; if it does, we're all going to be out of the editorial business. Now is the time to push for treating the web and print as equals. Wait, and you'll contribute to the industry "standard" of paying web writers - a.k.a., you, in the future if not now - less than print writers.

Newspaper Web Sites Reality Check

NOTE: Gary Kromer, director of research for the Fort Worth Star-Telegram and president of the NAA Research Federation, pointed out that I had stupidly (he didn't say it, but I certainly can, because I've read enough financial statements that I should have noticed the "000" addition) misread the chart, which measures readership in the thousands. So the average monthly readership of the top 10 papers is something over 64 million a month, which, frankly, makes a lot more sense. However, the time spent on the sites is still frighteningly small, so I'm rewriting this post for clarity and to indicate the elimination of one problem - but the continued existence of another.

I still say that newspapers are cheap, no doubt about it. At first they were because their profit margins literaly made pharmaceutical companies pale by comparison. Now they are becaue their revenues and circulation keep dropping. However, they have been a traditional market for freelance writers, so it's important to know how they are doing in the new media of the Internet.

Check this set of visitor statistics for top newspaper sites. Nielsen/NetRatings is a standard supplier of traffic measure, although many people wonder how accurately they count traffic. So, apparently the top newspapers, at least, are getting a good amount of traffic.

But this is traffic that is going almost as quickly as it arrives. Look at the amount of time per visitor per month for each paper - and realize that includes all visits. Even at the New York Times, that means 5 minutes per person per visit, or a total of 20 minutes per person per month. That's close to the top end, and it goes down from there. That means hardly anyone, on the average, is spending enough time to do anything other than read a few headlines. They aren't digging into the content.

It jives with something I've seen, when one of my business blog pieces gets listed via Sphere (a content connection service) next to articles on the Wall Street Journal's site. When that happens, I'll get, oh, three or four visitors from there. According to this study, the WSJ is getting 9 million people a month, and they're staying for maybe 3 minutes a visit. Even if you have something featured next to a story, virtually no one - as in a tiny, tiny fraction of one percent - will pay attention.

All writers need to be looking at such information constantly. You are your own CEO. You are your own CFO. Only you will be the person to acquire the information and do the analysis to figure out how and where to steer your business. If newspapers cannot keep people for any length of time on their sites, then their advertising, other than, maybe, a major banner or display ad, will be doing little. Advertisers look at numbers like how much time people spend on a site. If they don't see decent stays, they're going to figure that the people won't be there long enough to see the ads, either.

Yes, Mr. Kromer is correct in saying that there are big numbers getting to the papers. However, there is still little reassuring about the results. It's not that "people don't want long stories on the internet...unless they have plenty of relevant information and perhaps in a different (table? bullet point?) format from standard newspaper fare" as he said, but that they won't be there long enough for advertisers to really get value, and that means the advertisers will be less keen on paying a general rate to appear, and not something based on click-through proof of effectiveness.

That problem obviously isn't unique to newspapers, but it's one that the publishing industry will have to address. In print, you claim that people read your publication and charge for ads that always remain on the page. Online, advertisers have the upper hand. What will it take to change things? I don't know. But I do know that at 5 minutes or less per person, advertisers will not be satisfied with the money they spend.

More on Radiohead's Experiment

PaidContent.org has what it claims to be a "concrete analysis" of Radiohead's experiment in letting customers set their own prices. In the first 29 days of October, 1.2 million people supposedly visited the site, though that doesn't say how many people downloaded the music. Of the downloading group, 38% chose to pay, and 62% didn't. Average worldwide price paid was $6, and when you factor in the number that didn't pay, the average payment per download was $3.23. Because we don't know how many are downloaded/sold, it's impossible to know how much money the band has made. For some additional details, check PaidContent.org's sister UK site.

What to make of this? My feelings are ambivalent. Of course not everyone would pay, particularly when the band offered to let people choose their own price, and zero was an acceptable offer. But a good chunk did. The average payment was small, and yet it could quickly add up. Imagine an author getting even $2 or $3 a copy. Now, Radiohead is well known, and those who aren't well known will have a more difficult time getting the sales. But that's generally true even with conventional publishing. Even a relatively small number - in the low thousands - could start generating the type of money that would rival at least the lower end of advances of many of the series books (like Dummies, Idiots, Buffoons, Morons, Chowderheads, Politicians). And the up side would be far more attractive.

Giving Writing Away

In this blog, I've been following the topic of giving away content - not that there is a single answer, but because we all need to understand the dynamics. And now there's another view at The Long Tail. Chris Anderson, who wrote the book about the concept of selling small amounts to target audiences, actually refers to a commentary from Dilbert cartoonist and author Scott Adams in last week's Wall Street Journal. (Atually, you should read the Adams piece itself, as it has insight from direct experience and is funny, to boot. If you don't have a WSJ subscription, try finding this at your local public library.) Here's a particularly important passage:

A few years ago I tried an experiment where I put the entire text of my book, "God's Debris," on the Internet for free, after sales of the hard copy and its sequel, "The Religion War" slowed. My hope was that the people who liked the free e-book would buy the sequel. According to my fan mail, people loved the free book. I know they loved it because they emailed to ask when the sequel would also be available for free. For readers of my non-Dilbert books, I inadvertently set the market value for my work at zero. Oops.

In other words, giving away free content doesn't always help a writer, photographer, cartoonist, graphic artist, or other creative, though sometimes it does. As Adams writes, "Free is more complicated than you think." Understanding the new market dynamics is going to take a lot of experimentation and consideration - and a lot of discussion among those of us in these industries. The minute I think I have the obvious and easy answer is the minute I should figure that I'm definitely not getting it.