Not Getting Taken By PR

Forget about the obvious spin, or press trips, or other mechanisms that companies and their press representatives use to try and get journalists to say what they want. Instead, it's often the small things that cause the biggest damage to truth. For example, I remember once, after having sent a query via ProfNet, getting a response from a PR person, writing about his Fortune 500 client. But the company was in the technology sphere and completely unknown to me. I don't have an absolute grasp on all the Fortune 500 company names, but generally I've heard of the technology companies, having covered that space a fair amount. So I went to Fortune's site and looked up the list ... and found that the company wasn't on it. When confronted, the PR person responded, "I meant a Fortune 500 type company."

Oh. Right. Of course.

Such fracturing or even bending of the truth happens all the time, because companies and individuals want to be perceived in a specific way, to their own ends. Some PR people don't know better, some are deliberately manipulative, and some are trying to deal with pressures from their clients. It doesn't matter - you have to check out each claim and crack them open.

I had another recent example - a food company that had approached me about reviewing their product for my Flash in the Pan blog. No problem, as I do that fairly often. The products came in, and they were unimpressive. I went back to the PR agency's email and noticed some healthy lifestyle claims pegged to the USDA's guidelines. Then I looked again at their numbers: meals under 320 calories, less than 10 grams fat, and under 600 milligrams of sodium.

How much sodium?

I went and found that while the caloric and fat contents were each about 15 percent of a 2,000 calorie comparative chart, the sodium was a full third of the suggested amount. Because the food was so tasteless after processing, I suspect they knew that the sodium would make most people think that there was some flavor, even if there really wasn't. Guess what went into my review?

The claims could be the would-be expert mentioning what was essentially a vanity-published book, treating a commonly-known business practice as something new, or any of a host of other grey-tinged lies. All you can do to avoid being taken in is some homework. When faced with the book credit, look up the publisher on the Internet and see if it seems legit or one of the growing number that write books for experts. Consider the business practice and check with someone who might know if it's unusual or not. In short, make the claims prove themselves. It rarely takes that much time, and it can keep you from looking like a fool to an editor, or in print.

Crossover Market Strategies

Someone on a writers' forum asked about strategies from moving from one topic area to another in which you have no expertise or experience. Here are four approaches you can use to get into new markets. The first is one that I teach in my online marketing class. You create a series of steps that get you from one subject to another, creating a trail that you can follow. For example, pretend that you write about classical music in specialty magazines and that you want to write business stories about retail. Here is a set of steps that could plausibly get you from one to the other:

1. Write music pieces for magazines devoted to classical music lovers.


2. Pitch and then write an article that looks at the business life and realities of a free-lance classical performer.


3. Pitch a story to a small business magazine about a small album label that is trying to go against the conventional wisdom that classical music is dying out.


4. For another business magazine, write a story about the economics of niche music at retail establishments, and how that affects what you can hear.


5. Pitch some retail stories.

It generally shouldn't take more than about five or six steps to make the transition, and if you're clever, you can sometimes combine steps to shorten the amount of time. In the above example, the writer could have turned the third step into writing a story about a retail store that was trying something interesting to increase sales of classical music. Suddenly you're into writing about retail stores almost immediately.

Another crossover strategy is to create a strong enough relationship with an editor that he or she has a level of trust in you. The editor may know that you don't have specific expertise in the area, but understands that you won't get involved in something where you can't deliver. The first assignment or two may be shorts, because that reduces the exposure for the editor; if something goes wrong, it's easy to recover.

You could do so much research up front that you demonstrate some expertise, even though you haven't officially had any. Infuse the query with insight that builds confidence on the part of the editor. Then you complement the research with compelling clips. There are a three major tactics, in general, for choosing clips. You can focus on writing technique, expertise, publication prestige. You can use any combination of them. Because you don't have the expertise (otherwise this wouldn't be a market crossover situation), you take a mix of clips with great writing from the biggest publications to which you've contributed. (This is difficult to pull off when you don't have good national clips.) Mix the topics of the clips so you convey the impression of being able to cover a lot of different things.

Entering a new market is one circumstance under which pitching poorly paying publications can make strategic sense. If you have strong clips in other areas and want to build a track record for a new one, the editor with little budget might jump at taking a chance on you. Then you start to get your legs underneath you, without asking a mainstream pub to underwrite your learning curve at its usual rates. You get a clip or two on the topic, then quickly start moving up to the level of publications that you want.

It's vital for writers to understand ways of moving from one market to another. Not only can an infusion of new material keep you flexible so you can respond to changes in the economics of the industry, but it can shake up your usual beats, adding depth and insight that comes from making the intellectual and emotional connections among apparently disparate topics.

Did Maxim Review CD Without Listening?

Apparently Maxim rated a CD without listening to the entire album - and it's not even clear how much, if anything, the reviewer listened to. Here's something on one of my other blogs.

New Amazon.com Service No Bargain

Someone on a private email list mentioned seeing CreateSpace, an Amazon manufacture-on-demand and fulfillment service that can print books, CDs, or DVDs as people order them without your doing any fulfillment. I just looked at the pricing model they have and can say pretty confidently that using this service would be a good way for a self-publishing writer to quickly go broke.

The only giveaway is the pricing page. They get a percentage of the sale plus a fixed per copy price. This cost rapidly adds up. As an example, say that you have a 264-page B&W book. According to the chart on the page, the fixed charge per copy would be $6.78. In addition, they want 20% of the list price if you sell through them or direct, and 40% of the list price if you sell through Amazon.

Let's say that you set the price at $20 a copy. If you sell through the CreateSpace page, you pay 20% plus the per copy price, for a total of $10.78, or over 50%. That's hardly a way to do well in self-publishing, because you'll have the editing and design costs, marketing, etc.

If you sold through Amazon, they'd want, 40% off the list price. Now, it's not clear whether that's the only percentage they want, or you'd also have to have one of the Amazon Advantage accounts as well. Say you don't. That means the cost is 40% of list, which is $8. But you still have to take out the $6.78 per copy cost, with a total of $14.68. You'd effectively pay close to 73% royalties to Amazon, and that not quite 27% isn't going to cover all your costs of creating the book in the first place, so you could conceivably lose money on each sale. Better to find another way to get yourself into print.

Content Strategists, Not Editors

The publishing world is changing faster than you might think. Well, you knew that, but here is one of the signs that ground under our feet is cracking. “We don’t hire editors anymore,” says Meredith publishing president Jack Griffin. “We hire content strategists.” Folio reported that remark and more about Meredith in this article.

But before getting into more of the article, again look at that quote. It indicates so much in perspective. The focus is on content, not writing. That means everything - words, images, sound, graphics - is part of the mix. The "strategists" part? These people are responsible for coming up with approaches to make money for the company. Once the strategy was pretty much taken for granted. Meredith, in this case, would find a demographic, devise an appropriate publication, put it together, and sell ads while trying to build the reader base. But the new concept acknowledges that a single direction, set by the top, won't work. Strategies that work for one group may not for another. The view also says goodbye to the concept of editor: someone who is focused mostly on getting articles from writers and getting them prepared for print.

Griffin was giving a talk at Folio's annual publishing conference. As part of this new role of content strategy comes a recognition that many of the assumptions that have ruled magazine writing for decades are going out the window:

Griffin, on crutches and hobbled by a recent emergency surgery to repair a broken leg, said the change American consumer demographics—specifically, the spike in Internet usage and the emerging “white minority”—forced the Des Moines-based publisher to evaluate all aspects of its publishing business.

Meredith, Griffin said, was “founded on the social construct of Dad at work, Mom at home, Chevy in the driveway.” For a company that publishes “white-bread” magazines, he said, “the change has been quite provocative.”

Meredith has spent about $600 million in the last six years in developing its online, interactive, and integrated marketing businesses. If you're longing for the days that you could make nice money writing for major consumer print publications, then you're in danger of becoming a dinosaur. Now's the time to move in new directions.

Martha Stewart: Side of Emeril to Go

Martha Stewart Living Omnimedia has just bought the Emeril Lagasse franchise: books, TV shows, and products. All it cost was $45 million cash and another $5 million in stock. The total price could hit as much as $70 million, should the enterprise hit preset goals. The acquisition doesn't include Lagasse's company, which includes his corporate office and restaurants.

So, why the deal? Remember back with me to late last year, when the Food Network decided to stop filming the show Emeril Live. Here you see an example of real platform. The EL show was fairly popular, got lots of people saying "Bam," and turned Lagasse into a very hot commodity. But while he would still have had the Essence of Emeril show, it was a low-key affair with no screaming audience members and, presumably, a lot less mojo. No inside info here - just what I've seen on the Food Network and from being a food fan.

But I'd argue that this makes business sense, and it shows you the Essence of Platform: screaming fans that want what you provide. Not expertise; the Food Network has been cutting out a growing number of the show hosts that were actually chefs. But when that driving force is taken away, the whole kit and kaboodle is suddenly a lot less desirable on its own.

However, MSLO has the television distribution and already deals with magazines, books, and products. This was a natural match, and a very smart one. Because while MS has platform, the company needs more than her as a brand, or it could literally live or die on her mortal existence. Suddenly they had an opportunity to snag another personal brand that was a compliment, and so they paid a good amount. When an editor talks to you about brand, understand that this is the type of grand notion he or she really wants. Having a blog alone won't do it. Earning a special degree or certification won't do it. Those are the barriers to entry to seem credible. Then you have to get people wanting you. If you can do that, the publishing world will look far more kindly on you than you thought was possible.

Now, if someone can only get Rachel Ray off the Wheat Thins cracker boxes.

Contract Review: ProMedia.travel

I had replied to a JournalismJobs.com posting in either late 2006 or early 2007. In December 2007, I finally heard back (which shows that you shouldn't write someone off just because they're not working on your time table). The publisher, ProMedia.travel, has web sites and wanted travel writing at about $1 a word. They invited me to pitch, but I said, "Let me see the contract first." Here's my review (remember, I'm no lawyer and this is no legal advice):

• In General The contract that must have been the basis for this seems to have been focused on corporate design work and not editorial writing. Also, someone made a couple of twists in the redrafting, I think, and unintentionally greatly expanded the scope. In addition, there were some important items missing altogether.


• Due Date The contract uses as a due date a number of days from the signing date, not a specified date. The former is pretty clear to anyone, but the latter could result in late assignments because someone simply miscalculated the number.


• Grant of Rights The contract technically says that only the publisher can use the piece in print or online ever, anywhere, because it uses the term exclusive. Some of the rights are not clear enough. For example, according to the wording, the company could publish a piece in print or "electronic media," but it's not clear that would include online use. They could not make it available in a third party database, because there is no provision for them to sublicense any rights. Because there is no provision to sublicense and no explicit provision for syndication rights, the company cannot syndicate. However, the writer can't either, because the company has exclusively tied up all print and electronic media rights.


• Reservation of Rights In the contract that formed the basis of this one, the creator reserved rights not transferred. But in this case, the client - the publisher - is reserving all rights, which means that now there's nothing the writer can do, even if there was something left open, like basing a book on a set of articles. The contract mentions having rights in "preliminary materials" as well, which could include notes and early drafts (even if completely different from the final one), keeping the writer from using this material in any other way. It's about the most extreme statement in this area that I've seen in any publishing contract. Some of the language also makes it sound, again, as though this were intended for a graphic designer. The company would be better off having separate contracts, because the rights and other issues can vary greatly from writing to photography to graphics.


• Revisions There should be a limit to the number of potential revisions, because as written, the contract allows the publisher to ask someone for revision after revision.


• Miscellany The contract allows for transmitting assignments, edits, and expense authorizations either in writing or orally. That's actually a problem, because then neither side has an audit trail and could have a legitimate disagreement. I'd suggest confirming everything in writing, if you were to write for them.

Think that publishers are trying to trap writers? Nope, sometimes they just don't realize how bad a document is. For example, here's what I heard back: "I'm surprised because I thought it was actually a very freelancer-friendly agreement, based almost entirely on the attached document provided to me at a Freelancer's Union seminar." They said they'd look at the contract and I mentioned that I'd give a bit of time to see if there was a revised version. Having heard nothing more, I thought I'd post this.

Reed Business Information Goes on Sales Block

Variety (owned by Reed Business Information) is reporting that Reed Elsevier is selling Reed Business, a publisher/producer of hundreds of properties, with the US list, as the link will show, being extensive by itself. If you write for trades, here are some topic categories that let you see some of the breadth:

• building & construction


• electronics


• gifts & furnishings


• hospitality


• manufacturing


• supply chain


• media


• entertainment


• publishing


• television


• printing

This is a huge deal and will affect many writers who work for trade publications.

Contract Review: Natural Solutions Magazine (formerly Alternative Medicine)

A copy of this contract crossed my desk. Someone found the document confusing. No wonder - it is. Let's take a look (and remember, I'm not a lawyer and this isn't legal advice):

General Terms

• "The author warrants that this is an original work and that he/she has violated no laws and no person's rights in writing this article/producing this work and knows of no outstanding copyright restrictions on this work. " I’d want to replace "…he/she has violated no laws and no person’s rights…" with "…he/she has not knowingly violated any laws nor any person’s rights…" What if there is some obscure law in some country (as this contract doesn’t specify the governing language” that you might violate without even realizing it? For example, there are people who have sued for libel in the UK or Canada rather than in the US, because it’s a lot easier for the plaintiff there.


• "The publisher will pay the author within 45 days after acceptance of the final work (after all editing has been completed)." All editing? Some could be done right before the magazine is sent out to the printer, so it sounds like it’s effectively 45 days after publication.


• "All reimbursable costs will be paid after presentation of documentation by the author at the completion of his/her work (copying, document delivery, research services and any international calls must be pre-approved by Publisher)." As work would involve answering any questions from editors, that could mean after publication, and it doesn’t say how long they’ll take to pay. You want them to pay within your credit card grace period of undertaking the expenses.


• "Given time limitations for processing the article, the Publisher may exercise the option to edit and publish the article without review by the author. If the work needs extensive revision, the author has the right to request that his/her byline be removed." What if it doesn’t need “extensive revision,” but they make a few changes that make you look bad? You should have the absolute right to remove your name from the piece if you don’t get to agree to changes.


• "In the event that parts of the story need rewriting or require additional information, the author agrees to rewrite portions of the work to the satisfaction of the editor at no additional compensation." How about a reasonable limitation? Like one additional rewrite? And what if the changes are due to editors changing their minds on the angle or structure of the story after they’ve signed off on what you were going to do? You could have to underwrite their lack of firm decision or clarity.


• "Should the story be unacceptable and the editors deem it cannot be improved with a rewrite, the author will be paid a 'kill' fee of 15 percent of the agreed upon compensation, and the story will not be published." Push to have that mean that the story either did not cover what was originally agreed to or the submitted version was not prepared with typical professional quality. Otherwise, they could change their minds and then say, "Sorry, not acceptable." Why should you get hurt if the problem isn’t your fault?


• "The author will not re-sell said content or sell other content on the same topic using the same angle or sources for six months after agreed publication of said content." On the surface, that’s unreasonable. I could maybe see this if they limited it to directly competing publications, and shortened the period to 60 or maybe 90 days. This says you have to sit on the topic, no matter how timely, even if another outlet is not a competitor at all. And not use the same sources or slant? Too restrictive if it’s in a non-competing pub. But this is also a pretty blatant attempt to set up expectations in the writer that will never be fulfilled, as you'll see in a bit.


• "Given unforeseen circumstances, the final article may be held for publishing at a time or in a publication other than the one assigned. If so, the original due date does not change." That means final editing won’t get done until later, and so your pay drags on.

Assignment and Release of Rights

1. This clause seeks "editorial control with respect to content and suitability of this article for publication" and notes that the publisher has the last word on editorial. In other words, if they make a decision that is going to make you look bad or foolish, you have no recourse.


2. "I convey to InnerDoorway the exclusive license to publish the article, worldwide, in print media (including, but not limited to, InnerDoorway’s publication, Alternative Medicine), in any electronic media authorized by InnerDoorway, and in reprints published by InnerDoorway. The rights herein granted include the right to use my name, approved biography, credit line, likeness, and any portion of the article in connection with the publication, advertising, and promotion of the article; and to make such other promotional use of the article as InnerDoorway deems necessary." Welcome to the door opening to the land of confusion. They have an exclusive license to print, electronic media, and reprints. That would mean you can’t do a thing with the piece after. The rights in 2 would have to be time limited for you to do anything else with the article. Now take a look at 3.


3. "I agree to wait at least six months after the original publication of the article before allowing any other publication to reprint the article. I shall make best efforts to include the credit line, “Originally appeared in [issue month and year] of Alternative Medicine,” in all reprints not published by InnerDoorway pursuant to this Agreement. I shall not grant rights of any kind to the article to any competitor or imitator of InnerDoorway." Oh, what hooey, as well as hot air. If you've sold exclusive rights, that means you have no rights left to exploit. This makes you think that you keep control of your work, but you don't - and even if you did, they'd want credit for having written a check to you in the first place.


4. "The rights hereby purchased comprise all the rights in the Content of every kind, nature and description, including, without limitation: (a) the actual document; (b) the right to secure copyright and/or patent protection and registration thereon anywhere throughout the world, in our name or otherwise; (c) any and all publication rights therein, in whatever form; (d) the right to use, license, sell or otherwise dispose thereof in any manner and for any purpose InnerDoorway sees fit; and (e) any and all related rights therein." Just when you thought the rights issues were bad, now they're worse. They want the power to register copyright in their name and have absolutely all rights. Sounds like they’re trying to con writers into thinking that it's only a First North American Serial Rights contract when it's as grabby as you can get without asking for work made for hire. But the approach comes across as incredibly sneaky.


5. "In order to induce InnerDoorway to make this purchase, and in consideration thereof, you hereby represent and warrant that: (a) you are the sole creator of the Content; (b) the Content is original and has not heretofore been published; (c) the Content does not infringe upon any statutory copyright, common law right, propriety right, or any other right whatsoever and contain no matter contrary to law; (d) you are the sole owner of the Content and all rights herein conveyed to InnerDoorway; (e) the Content and such rights are in all respects free and clear, and that you have not heretofore made any commitment for the use of the Content; (f) you have obtained all necessary permits and authorizations and complied with all laws and regulations in connection with creating the Content; and (g) you will hold InnerDoorway harmless from any and all claims arising therefrom." If the rights stuff was agreeable (and it seems ridiculous), then I’d modify (c) so that it “does not knowingly infringe,” because there is no limitation of under which laws this can be interpreted, and it's overly broad, as well. And harmless from any and all claims rising therefrom … what? That you have permissions? Or that you promise everything here? What if they add something that is a problem and you get sued? Might you be holding them harmless, meaning that you’re saying you cannot recover damages that they’ve covered? Maybe yes, maybe no, but you can bet that if the situation came up, their lawyers would try to argue that point, and you’d have to go to court, which would mean more money just to get to a point where you might or might not be able to sue to recover what you lost.


6. And just in case you had any other ideas: "InnerDoorway shall have the absolute right and discretion with respect to the Content, without any further compensation to you or without any authorization by you, including, without limitation, the following: (a) to use or not to use the Content or any portion thereof and (b) to use the Content or any portion thereof in conjunction with other material."


7. A reference to the Visual Artists Rights Act of 1990 has to do with visual work and the allowances the law made for an effective set of moral rights - the right to control your work, to get credit, and not to have your professional reputation damaged from the use or misuse of what you created. It doesn't apply to writers, but it does show the publisher's desire to have others sign their rights away.

Overall, an unfavorable contract, I think.

Be Wary of Free Contract Advice

There are a number of organizations and individuals, including me, that provide contract advice to writers. I was accidentally copied on an email exchange involving one and, as is my wont, unapologetically (and, probably, unwanted) expressed my opinion. Why? Because, frankly, I was shocked.

The person representing the organization clearly didn't understand the serious implications of a given indemnification clause for the writers the organization advises. The person actually wrote, "In my [publishing] experience ... this clause is pretty standard and puts the onus to get things correct on the writer." Here's the clause in question:

Each Party hereto shall indemnify, defend, and hold harmless the other Party, its editors, officers, employees and agents with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys' fees, to the extent that it is based upon a claim that, if true, would constitute a breach of any of the indemnifying Party's representations, warranties, or agreements hereunder.

Two things concerned me. The clause, specifically, has the dangerous phrase, "based upon a claim that, if true [emphasis mine], would constitute a breach."

In other words, the writer needn't have done anything wrong to be at risk. So long as someone brings a legal claim or action on a ground that would indicate a breach of the writer's warranties (covered in a separate clause), then the writer takes on the financial obligations of the publisher - even if the publisher decides to settle with the litigant. That means the publisher could make a decision to settle the issue and the writer, even if in disagreement with the action and contesting any wrongdoing, would be left to cover the costs not just of the financial settlement, but of the publisher's legal costs. This could happen even if the writer did nothing. Even if a court would not have compelled the writer to do so. Even if the publisher was lax in its own review.

Although I'm flexible in negotiations, an indemnification clause worded in this or similar manner is one of my true deal-killers. I've warned hundreds of writers personally, and heaven knows how many in seminars and panel discussions, about the implications of such wording. However, someone from a writers' organization, who clearly didn't understand those implications and, clearly, with the best of intentions, was inclined to give advice suggesting that the clause was one of those things that writers must bear.

The second aspect that bothered me was that the person from the organization was so ready to take on the view of a publisher. Granted, this person actually had spent considerable time working at a publishing company, but when you are trying to represent the interests of writers, that point of view must go out the window, because you have to think about what is best for the writers and how to help writers push back on terms and practices that are unconscionable. Here's part of one of my responses through some back and forth:

Also, in general indemnification clauses are, of their nature, unfair to the writer. You almost never see the publisher indemnifying. A lack of an indemnification clause doesn’t mean that the writer is any less on the hook. It does mean, however, that the court doesn’t have a say as to whether the particular circumstances in a case actually warrant the writer taking on the financial burden, or if the publisher was significantly at fault as well. Also, the publishers have insurance, particularly important if someone decides to sue even though there isn’t anything wrong the writer did. If there is indemnification, then there is an incentive for the publisher to settle, no matter what the merits, and expect the writer to cough up the expenses, including the publisher’s own legal expenses.

The reply? "If they can be struck, sure, do that. But most publishers insist they be retained..."

However, that's not true. There is flexibility among many publishers, whether producing materials for online, books, or magazines. I’ve seen writers get such clauses struck, or at least modified to get rid of such things as the "if true, would constitute a breach" language, or by properly inserting language like "if such decision is upheld in a final court of appeals." If you’re providing contract assistance to writers, you need to be able to give a close read that immediately sees such problems jump out at you.

I'm not mentioning the organization in question, because it doesn't matter, as the problem is inherent in the free review system that writers have come to depend upon, and that many unfortunately use as a substitute for their own judgment. When you're getting non-legal advice on contracts, you want to tread warily. Never assume that the person answering necessarily knows enough to hand out advice. Although the people generally have the best of intentions, it's very easy for them to suggest something that could return to bite you. Think that writers don't get sued and that indemnification doesn't happen? Here's a bit of something that my colleague Sue Russell, a long time advocate for writers and someone who also served on ASJA's contracts committee at the same time I did, once wrote about the need for media perils insurance:

Mike Mansel [who is a sympathetic insurance agent very familiar with writers’ problems] and his company assert that it’s not just true crime writers who should be aware of liability issues but even the authors or self-publishers of cookbooks and maps, as publishing expands into new worlds (audio books, e-books, POD, the Internet, etc.). Mansel’s site says:

“Unlike traditional claims involving allegations of libel, invasion of privacy, copyright infringement, piracy and plagiarism, errors and omissions claims seek to impose liability on the publisher for physical injuries or economic loss allegedly caused by some flaw or negligent publication in the ideas or expressions contained in the published material.

“Publishers of "self-help" or "how-to" books are particularly vulnerable to these types of claim, and suits have been brought successfully against publishers of cookbooks, books on toolmaking and metalworking, medical text books, diet and exercise books, books on herbs and wellness, maps and charts to name just a few.”

In other words, if you think you're safe because you're not controversial, think again. And if you assume that some organization, no matter the reputation, will give you sound advice, then you're a law suit waiting to happen. You don't know exactly who is handing out the advice. Has the person received any training or done any extensive research into the topic? Or is the organization grabbing whatever volunteers there may be because the "service" is at least as importantly to the organization or person a public relations outlet? Are you getting advice from someone who is such a principled activist that the person suggests walking away from this, that, or some other contract, even if there are ways of making the contracts workable for someone - you - who has to make a living?

Again, I'm not mentioning names because this isn't about one organization or individual or another. It's about the trouble you can find when you rely on the kindness of strangers, no matter how sympathetic or certain they might be. Educate yourself, and remember that no matter who claims to be helping, you always have the greatest interest in your own welfare. Look after it by arming yourself through education on publishing law, contracts, and negotiation.

Editor Pat Strachan on Her Career and the Business

Poets and Writers magazine has an interview with Pat Strachan. Aside from the general interest for people in the business, there are some practical nuggets of advice you can mine. For example, she mentions the "stopper" - a term from her New Yorker days meaning some image "that causes the reader to stop and read in a daze over the next pages." So you don't want to follow something like that with a section that is critical to the book, because people will miss it. Or there's the most common problem with first fiction books:

They can be too controlled. I find a lot of first novels too careful and too polite. I mean, let’s face it, Housekeeping is a wild book. I don’t think Marilynne had ever published anything before, even short pieces. She was doing what came from her mind and her experience. Larry Heinemann’s book is another example, a graphic war novel, but just gorgeous. Sometimes others can be a little tight and a little fearful of being messy.

Certainly not something I would have known. Also, she generally knows within ten pages whether she'll like a book. It's definitely worth a read.

More on Movies, Net Profits, and Authors

Well, I've just been pointed to another LA Times piece that goes over the numbers a bit more:

• Olivia Goldsmith, author of The First Wives Club, was paid $250,000 for the movie rights, although worldwide gross for the film was reputedly $181.4 millon.


• Winston Groom was promised $350,000 and 3% of the net profit for the movie rights to Forrest Gump. He got ... $350,000.


• Alice Walker, who was supposed to get 3% of the gross for the movie version of The Color Purple, eventually got something, but only "a fraction" of what she thought she was owed.


• Art Buchwald sued Paramount Pictures for what he said was theft of the concept from his treatment for the idea of Coming to America. He won in court, after being told by the studio that although the movie grossed $350 million, there wasn't any money to pay net profits. Must have been a catered lunch or two that put them in the hole that completely.

The story has a great quote:

Ernest Hemingway once noted that authors should drive up to the California border and throw their books over a fence while studio officials throw bags of money back over the fence. That, he said, should be the end of the transaction.

Net Profits Screw Book Author

A studio taking advantage of an author - I know, it's hard to believe, eh? Thanks to a reader pointing to Sarah Weinman's blog, which pointed to this LA Times piece, we have a story of an author, Deborah Gregory, who wrote a popular line of books for girls: The Cheetah Girls. But when she signed on for a cut of net profits of the movies, CDs, DVDs, and even concerts that Disney has sold, she didn't realize she was also signing on for Hollywood accounting:

Her breezy, street-smart tales of five girls chasing pop music careers were turned into two hit television movies, and a third is now being filmed in India. Cheetah Girls CDs and DVDs have sold in the millions, and concert tours have hit more than 80 cities. Meanwhile, Disney's fabled merchandising machine flooded the market with Cheetah Girls shoes, dolls, toothbrushes, video games, backpacks, note pads, pillows, posters, T-shirts and the like.

Gregory expected to get a piece of the action when she signed a 2001 contract promising her 4% of the net from all of this activity. But like many other authors who have signed away dramatic rights, she says she never got a penny of the profits. Unlike screenwriters, who were backed by a strong union in their recently ended strike, most literary writers are at a disadvantage when negotiating with Hollywood. And it is difficult, if not impossible, for them to crack the safe.

According to the story, Gregory has seen $125,000 total in the last nine years. She's never gotten a "net profit participation statement" from Disney, although she's been asking. She lives in a studio apartment in Manhattan.

"This is an old, old story in Hollywood," said literary agent Nicholas Ellison, who has represented numerous clients in book-to-film negotiations. When studios are asked why an author has not received any net profits, he said, they often point to expenses that have grown larger than expected and contend that a hit picture has not, in fact, made money.

It's called "Hollywood accounting," and in some cases studios may be on solid ground, citing legitimate costs such as promotion and development. But in other cases, contracts contain definitions of "net profits" that make it all but impossible for an author to collect money that once seemed tantalizingly at hand.

No kidding. According to the WGA, 43 percent of Hollywood movies over the last five years were adapted from books, articles, and other writing. As Paul Aiken of the Authors Guild said, "The best advice we give is that you should try to get as much of your money upfront. You can't count on net profit deals for anything." And apparently the studios are ready to walk away from writers, including ones that aren't big names, because there are always other books available.

But don't think this is restricted to Hollywood. I've often found these "net profit" clauses in both book and magazine publishing contracts. Writers assume they're getting something real, rather than asking just what the hell gets taken out before you get to "net." It makes me angry - really angry - because this isn't some accident, or just a poor choice in wording, or even contract terms taken from some other kind of contract and assumed to be applicable, as happens often in publishing agreements. This to me reads as the deliberate intent to trick a writer into the assumption of getting one thing, while offering an opportunity to play with definitions to deliver a great big fat zero.

Let me ask you: Have you ever signed a contract that provided for participation in net sales through syndication, or licensing to overseas magazine titles? Now, I've known a couple of writers who have gotten extra money from Hearst, but other than those couple of cases, I've never heard of anyone getting money down the line.

This suggests that writers should absolutely push back on these net deals. Either the publisher isn't using the rights you grant and there is no money of which to get a cut, in which case this is opportunity wasted, or they do make sales and come up with ways of not paying. Do you ever get notification of other sales? Is there a clause, as in the book publishing business, where you could audit them? Nope, and I'm betting that's for a reason, though I cannot bring myself to calling it good. According to the story, Gregory wrote 16 novels in the Cheetah Girl series, sold 2 million copies, and got $180,000 in advances. Think that's good? Do the math: it's $11,250 per book. You could write how-to series titles and probably do better. As for the pittance she saw from what Disney got, I guess their expenses were inordinately high:

The first movie was broadcast in 2003, drawing an estimated 6.5 million viewers on its first night; the second aired in 2006, attracting 8 million. Two CD soundtracks sold a combined 3 million copies. National concert tours in each of the last three years have played to sold-out crowds. Merchandise made by a flurry of companies who leased the rights from Disney began flooding into malls across the nation.

Hollywood is again courting Gregory over a new series she's written. And this time she's not depending on just her agent, which is William Morris these days, but is independently hiring an experienced entertainment lawyer to represent her interests. You and I can't do that with magazine contracts, so maybe a "get this out of the contract" approach is what is necessary. And if the publisher insists that it needs the rights, then tell them you want something in there about being able to audit the results and to get notification of when these deals happen. Oh, and a definition of exactly what comes out between gross and net.

Contract Review: Better Health & Living

Another contract came my way, so here's a review. As always, I'm not a lawyer and this isn't legal advice:

• Section 2 "Publisher retains the right to make any and all revisions and/or modifications as deemed necessary." However, will you ever get to see what appears with your name before it’s in print? You should have the right to see edits ahead of time and, if you find them egregiously bad, take your name off the piece.


• Section 3 Pay comes within 30 days of invoice, but also "after acceptance of the Work by Publisher in a publishable form satisfactory to Publisher (at Publisher’s sole discretion)." The publisher can decide that something isn’t suitable, even if you deliver what it asked for. There is also no time line for providing official acceptance.


• Section 4 "Publisher agrees to reimburse the Author for all pre-approved and documented expenses within fifteen (15) days of submission of the receipts to and the acceptance thereof by Publisher." This has become a personal irritant to me, because if you're getting reimbursed, then it shows up as income, and you need to deduct the expenses on your own taxes so you don't have to pay taxes on the expense reimbursement. That means you need the receipts. If they're willing to take duplicates of the receipts, that would be fine, but some publishers won't, and there's nothing about what is acceptable in this contract.


• Section 5 Although the section starts off about the copyright being the property of the writer, be wary, because you're being set up. In paragraph d, "The Work contains nothing libelous or otherwise unlawful, does not infringe any rights of other parties and does not contain any recipe, formula or instruction which if followed accurately would cause injury or damage." How about knowingly on at least the libel or rights infringement? Because ultimately it’s a court that decides whether something is or is not, not the writer. Graph f states, "All statements of fact in the Work are true and based upon deliberative research and all instruction and advice in the Work is harmless and not negligent or defective." Add "to the best of the writer’s knowledge," because you could make a legitimate mistake, but there are no provisions for honest mistakes here. Graph h provides the real zinger: "The Author agrees that all Work performed for and accepted by the Publisher has been written exclusively for the Publisher for distribution and circulation into various markets at the sole discretion and timing of the Publisher. Author further agrees not to reproduce or disseminate the Work in any fashion to any third party without the express written permission of the Publisher..." In other words, and the second sentence notes this, they want control even if they don’t own copyright. And unless it’s all rights, how can it be written “exclusively” for the publisher? It doesn't matter, because this is saying that you don't intend to sell it to anyone else, and that you'd need to get the written permission of this publisher to do so. It's an end run around using either "all rights" or "work made for hire" wording that might alert you.


• Section 6 I find the sentence "The Author should not consider the publication of their Work as certification by the Publisher" to be confusing. Does this refer to copyright registration? If not, then what?


• Section 7 "Although Author may be permitted to reuse all or portions of their Work under this Agreement in other works, this does not extend to granting third- party requests for reprinting, republishing or other types of commercial reuse. All such third-party requests received by Author must be forwarded to and handled by the Publisher, at the Publisher’s sole discretion." This whole thing reads as something sneaky to me. the author may be permitted, but doesn't have to be permitted. And this doesn't extend to third party requests for republishing, reprinting, or "other types of commercial reuse"? So effectively toss out even the "may," because if it's commercial use, you can't have it.


• Section 8 "Should either party to this Agreement be required to engage an attorney to enforce any provision herein, or bring an action for the breach hereof, then in addition to any damages or other relief recovered or obtained, the prevailing party shall also be entitled to recover reasonable attorney’s fees." That should not be granted ahead of time, but left to a court to decide.


• Section 9 "This Agreement shall be construed according to the laws of the State of Delaware, without regard to the choice of law provisions of that State, and all actions, regardless of the form or nature of such, to enforce this Agreement or for the breach of same shall be brought within one (1) year from the occurrence of the grounds for such action in Delaware." First, this is a problem because you're agreeing that you'll go to Delaware to bring an action, at least the way it reads to me. Second, someone can think there's a material breach of the contract, not say a thing, and the suddenly take legal action up to a year later? How about a chance to fix the breach? How about just getting rid of time periods?

Given the rights obfuscation and some of the other issues, unless this publication is paying a whole lot, I think a writer would be better with a whole different contract.

Contract Review: BobVila.com

A copy of the "content provider's agreement" for BobVila.com hit my inbox, and here is my take on it (please remember that I'm not a lawyer and that this isn't legal advice):

• 1. - Definitions Pay attention here, as these definitions will reappear, and you'll need to know what you're being asked to agree to.


• 3. - Fee The assignment documents state fees, but notice that they're supposed to be paid within 30 days of acceptance of a work. Nothing says how long the site has to accept some content or what constitutes acceptance - a note from the editor, or is there a committee process?


• 4 - Delivery of the Work; Editing Process, (b) The web site owner "has the right to delay display or publication of the Work, or to choose not to display or publish the Work, at its sole discretion." That means for any reason, including the phase of the moon. If they don't use it, you get a kill fee of 20 percent, even if you did as you were asked.


• 4- Delivery of the Work; Editing Process, (d) They can look over what you send in and ask for deletions or changes because they think someone could sue them, but they have no responsibility for problems, even if they don't see anything wrong any more than you do.


• 4 - Delivery of the Work; Editing Process, (e) "If requested by Web Site Owner, Content Provider agrees to give Web Site Owner access to the Work Files and/or to make copies of all or part of the Work Files at the expense of Web Site Owner, within a reasonable time period after receiving the request" What if you have to hand over the notes and they add something? Now that material may be no longer available for other work you do.


• 5 - Representations and Warranties, (g) "[T]he Work does not and will not violate any law or regulation, including without limitation, the laws and regulations governing defamation, libel, pornography, and or obscenity..." This is very sticky, as it explicitly says any law or regulation and doesn’t narrow things down to one set that you must be concerned with. Even though there is a later provision for the contract to be construed under Massachusetts law, I don't know if that would offer any protection.


• 5 - Representations and Warranties, (h) "...any computer files or other medium in which it is delivered to Web Site Owner, do not contain any viruses or other computer programming defects which are intended to or are likely to result in damage to the Web Site or another web site, computer system, or data of Web Site Owner or any other person or entity." That should be modified with the word "knowing". What if there’s a new virus that your scanner doesn’t notice?


• 6 - Intellectual Property and Ownership of Work What you do is either work made for hire or, if not allowed under the law, you transfer all rights and interests to the intellectual property (including copyright) to them, and you can't do anything with the material again.


• 7 - Confidentiality and Non-Disclosure You can't talk about the contract, or even negations you've had with the site, which means no telling others about rates and what things can be negotiated successfully. The language reads as so extreme that it's not even clear you could tell anyone that you were working on a story for the site.


• 8 - Indemnification by Content Provider "Upon written notice from Web Site Owner to Content Provider, Content Provider shall defend, indemnify, and hold harmless Web Site Owner..." but there's no time frame in which this needs to happen. Also, they want indemnification not just for a breach, but an alleged breach (someone claims you did it) of the warranties - or anything else to do with the contract. For example, if they want to argue that you didn’t deliver what they requested, it might be that they could argue it was a material breach and have you fund the legal case against you.


• 10 - Governing Law; Jurisdiction If you have a legal beef with them, you have to take care of it in Massachusetts.

There's enough here screaming "deal killer" that, personally, I'd pass on taking an assignment without some significant changes.

Hollywood Writers End Strike

The screenwriters have voted to end their strike, with 92.5 percent voting in favor of calling it off. Congratulations to the WGA members for holding out and getting significant concessions from the studios.

Contract Review: Leverage Media

Now, remember that I'm not a lawyer and that nothing I write here is legal advice. However, I have done a lot of custom publishing work and, as a result (as well as reviewing contracts for other writers), have seen many custom publishing contracts. So when I say that a given custom publishing contract is probably the single worst I've seen in the field, it's saying a lot. But that's the case for the Leverage Media that someone recently forwarded to me:

• 1b - when the contract defines the writer's contributions as specifically including, but not limited to, " all documentation or information resulting, in whole or in part, from services that Contractor provides under this Agreement, including but not limited to all drafts and computer-readable materials prepared for LM, LM’s Clients or LM’s Potential Clients," you know you're in trouble. Look again - all information. I suspect your contribution would include all notes, interviews, and other research, which is a whole lot to give away at rates that, from what I hear, aren't that much higher than $1 a word.


• 1d - The contract specifies "this Agreement shall not be deemed to be for a fixed term of any duration, and is terminable at will." Does that mean that the publisher (or the writer, for that matter) could call it quits in the middle of a project without any provisions for the time book that is no longer being used? Certainly sounds plausible.


• 1e - This clause says that time is of the essence, which means if you're late, it's a major breach of the contract and might let the other party out. Also, "any failure by Contractor to complete such tasks in a professional manner by such date shall be deemed a material breach of this agreement." Oops - another open manhole cover. And all Leverage would have to do is pay any out-of-pocket expenses, previously allowed in writing, that you've undertaken.


• 1f - Here's a real winner: "(f) Except as set forth above in Paragraph 1(d), either party, upon giving 5 days written notice of any material breach of this Agreement (including, without limitation, Contractor’s failure to provide services), during which 5-day period such breach remains uncured, may terminate this Agreement." But 1d says that either side can terminate the contract at will, so this doesn't do a whole lot.


• 1g - Sound the fire alarm. You don't get paid unless and until the ultimate client pays Leverage. So, no matter how well you do, if they can't keep the relationship going, or if they screw up in some way, they expect you to write off the work you just did. That seems like a sucker clause to me, 'cause only a sucker would sign it.


• 2 - They want to own all information, whether marked confidential or not, and any work you come up with. So, if they don't get paid, does that mean they still own what you did?


• 3 - Solidifying the grab, what you write is under a WMFH agreement, and if something isn't a candidate for WMFH treatment under the law, you hand over copyright. And if they don't pay because their client didn't pay them? Well, they told you that in the contract. IT might be that a court would toss out the agreement, saying that, as there was no payment, there could be no business transaction, which must be the basis of a contract, but you'd have to spend money on a lawyer for that.


• 4 - The warranties are pretty broad, and the writer will not "violate any copyright, trademark or service mark, common law or any other right, or defame or harm the individual or business reputation, of any person, corporation, or other entity." At least a later clause says that the contract must be construed under New York law, so perhaps you aren't providing a warranty under the laws of other countries, as well.


• 5 - Now comes the confidentiality and non-disclosure statement. Nothing necessarily so over-reaching here, but, good golly, all this verbiage and legal consideration for a crummy article?


• 6 - Many companies that subcontract writers, etc., have provisions for not allowing a subcontractor to poach its clients. That's fair enough. However, this contract is more broadly worded. For example, you are supposed to agree not attempt to get business, whether directly or through some other company, that is similar in nature to what Leverage does. There's a two year time limit on this - about double what I've seen elsewhere, and clauses like this are hardly the rule. Plus, not only does it apply to current clients and even prospective clients (and just how big is that list, anyway?), but even some number of prior clients that, apparently, no longer do business with the firm. This is a list that includes a number of law firms and even some magazine publishers like Chief Executive and Crain's New York Business. Jeez. And if you do slip, even accidentally, they want you to agree to turn over 150 percent of the money you made from the client!


• 7 - I never trust contracts that call for automatic injunctive relief on the part of one party but not the other, because it's unreasonable to expect that someone can demand an injunction without having to provide a pretty high bar of reason for so asking. This company's agreement is one such.


• 9 - Not only do they want indemnification for any breach of warranties, representations, and so on, but for any alleged breach. "Oh, sorry, we claim that you breached the contract, so we're going to get an injunction and, please, pay our legal bills for doing so."


• 12 - They like New York laws, which is fine, and want you to take up any legal problem in Westchester County, which is not.

I may have missed something or other in the agreement, but with one like this, it would hardly seem to matter.

Learn to Say No

Every writer knows that there are times to just say no. Sometimes pay or terms of a deal are far enough from your business model and practices that you can't afford to take on a given assignment or client.

And yet there is another circumstance under which many writers would do well to reply in the negative, even if their impulse is to agree almost before the question is asked. That's when someone approaches a writer with a potential assignment out of his or her experience and the writer relies on the theory that yes is always the right answer, with a scramble after to find a way to satisfy it.

I disagree that yes is always the smart thing to say, and would argue that the approach is often business disaster waiting to happen. There are areas that need specific experience and knowledge. For example, it's difficult to write about investor relations, whether in an article or as part of an annual report without some clear understanding about the regulatory nature of the field and what can and cannot be said. You could agree to cover semiconductor manufacturing without the right type of tech background, and things could blow up without your even realizing that they have at the time.

This isn't to say that you can't shift to new areas. Sometimes a topic unfamiliar to you has analogies in what you've already covered, making a transition smooth. It could be that something new, or the treatment of it, doesn't require anything that you don't already have. You might be able to develop expertise in a different field, if you invest the time.

Clients usually know when a general background will do, and when they need someone specialized. In the latter situation, making a promise and then assuming that you'll be able to cover the ground is not just taking a chance with your time, but with your client's business and money. Such cases are con games.

A business relationship is not just about you. If you find that you don't readily grasp the essentials of the topic, then you should not be covering it, or both you and the client should go into it with eyes open - and fees that reflect the fact you're on a learning curve.

Multimedia and the Single Freelancer

A reader of this blog forwarded a link to a post on The Editors Weblog. The World Editors Forum, part of the World Association of Newspapers, publishes it. This post quotes Bas Broekhuizen, a television person from the Netherlands, who argues that the drive to turn journalists into multimedia people is a mistake. He led an effort at the leading Dutch broadsheet to train reporters as video journalists so that they could produce both written and video stories. The experience was less than stellar:

“In my opinion every journalist can learn to be a video journalist, as long as he or she is not afraid of the technical aspects (camera, computer, et cetera). Journalism is about telling good stories and in that regard there's no difference between writing and filming,” said Broekhuizen.

“But to become a real good video journalist, you need talent and time. A lot of time.”

“That's why I do not believe in the so called multi skilled journalist, or in ‘convergence by hardware’. Just handing out cameras to newspaper reporters will – in my opinion – not bring you video reports with the quality you want.”

Broekhuizen thinks that the answer is working with specialist teams, not reporters who do it all. Those who follow my blog might be surprised to hear that I agree, because I've often stated that reporters need to learn additional skills - video and audio and some HTML coding - to deal with the web.

The best approach would be to have separate people doing these jobs, for the same reason that the actors in a professionally-produced play aren't also directing, designing sets and lights, building costumes, and running operations back stage. Specializing does give you the chance to learn something well.

That's the theory, at least. Unfortunately, practice doesn't always follow smoothly. A team is great if someone is willing to pay for it. This Dutch newspaper went that route, and obviously had the money to do so. But publishers keep tightening the financial reins, and it's tough enough these days to get them to send both a writer and a photographer. Can you imagine most of them actually paying for a video crew to join the happy reporting band? Neither can I. And yet, as YouTube shows us, video can become insanely popular on the Internet.

When a publisher looks more and more to the web and sees that video might draw the younger demographics that advertisers, either rightly or wrongly, so passionately seek, what are they going to do? Keep funding long-form articles? Or will they say, the hell with writers, let's get some video on the site? My bet is on human nature, cheapness, and the desire for audience.

Let me be clear: it's not easy to do multiple media at the same time. I've gone into stories both taking notes and photos. When doing one, you can't do the other. Adding video or audio only complicates things. But even my myopia can make out the tall letters on the side of the building. When publishers move to multimedia, you'd better be there if you want to keep clients. So now's the time to start learning, so as the publishers experiment, you'll be there with them, and they'll develop the habit of calling you for the complex assignments.

As for the corporate world, I expect it will do as it has in the past - assume that video or audio is a separate undertaking and pay for specialized crews to do the work. Having mixed skills could offer a competitive advantage (lower costs), but only if the video and lighting and audio come out as well as the writing.