Erik Sherman's WriterBiz

A spot about the business of writing as seen by a freelance writer. That includes marketing, sales, contracts, copyright, planning, research - in short, the business end of writing.

Name: Erik Sherman
Location: Massachusetts, United States

I'm an independent writer and photographer who covers business, food, technology, books, media, general features, and pretty much anything appealing that results in a signed check. My work has appeared in such places as the New York Times Magazine, Newsweek, Newsweek Japan, Fortune, Inc, Fortune Small Business, the Financial Times, Advertising Age, Saveur, US News & World Report, and Continental

Monday, March 31, 2008

Amazon Twists POD Arms

According to various stories (Writers Weekly, Wall Street Journal, and Publishers Weekly, to mention a few), Amazon.com has admitted that any print-on-demand publisher that it use Amazon's Booksurge publishing services or have their Buy buttons on the book retailer's site disabled. In other words, Amazon is trying to force all POD work to go through its own facilities or else it won't sell the book. That's a form of intimidation and economic coercion that I find appalling.

This is of vital interest to all writers. What if you want to own your books and self-publish? POD doesn't provide the most ecnoomic way of doing so (and Amazon's service for individuals is no bargain). What if your publisher decides to use POD? It's an option that even the largest companies are considering. Will Amazon treat them the same way? I suspect that by going after the POD contractors, Amazon is trying to set the stage for this next natural extension - and, in fact, it appears that some smaller traditional publishers are already being pushed down that path. That means lots of books will become far less economically feasible. Guess who will be asked to drop their financial expectations? The writers. That is, if they can get a contract.

Now is the time to complain, and loudly, to Amazon.

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Newspaper Ad Revenue Takes a Tumble

If you like newspapers as a market, this is grim. The Newspaper Association of America reported that total print advertising was down 9.4 percent from 2006 to 2007, according to this report in Editor & Publisher. If you include online revenue the drop was 7.9 percent. That is not good, because the newspaper business is clearly related to that of magazines, so think of this as an early warning. And while online ads went from 5.7 percent to 7.5 percent of total newspaper revenue, growth is slowing:
There are signs that online revenue is beginning to slow as well. Internet ad revenue in 2007 grew 18.8% to $3.2 billion compared to 2006. In 2006, online ad revenue had soared 31.4% to $2.6 billion. In 2005, it jumped 31.4% to $2 billion.

As newspaper Web sites generate more advertising revenue, the growth rate naturally slows.
It is true that growth rates will, eventually, slow as the pot gets bigger. However, when online advertising is jumping by 20 percent according to Jupiter Media, you really don't want to see newspapers lagging behind.

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Saturday, March 29, 2008

Contract Review: More

Someone asked me to review a recent MORE publication contract. Please remember that I'm not a lawyer, that this is not legal advice, and that it's always possible to try and negotiation contract changes with publishers. Also, be aware that Meredith is known for having multiple contracts, so my review of this version may not be of help if you get a different one.
  • Introductory paragraph: Although there is an indication at the top of this contract that the magazine is More, this contract is with Meredith for any writing you do for the company.

  • The Works: This clause indicates that you're signing a master agreement, because it covers any writing you do for the company, and that you retain ownership of the writing you do. So, the next time a Meredith editor tells you that the company only has a work made for hire contract, tell them, at least as of the first quarter of 2008, you know that to be incorrect. Also, be careful if you also write for the custom publishing arm, which, I believe, is WMFH. You want to be sure that any subsequent contract does not restrict your ownership rights in the regular publications.

  • Schedules: This says that you get an additional paper for each assignment that will have the specifics, like length, subject, and date. The second sentence is confusing: "Each Schedule shall set forth a description, due date(s) and fee for the Work(s), and a term (the "Term") if Creator is a contributing editor." I'm not sure what the term is, and it's not clear whether being a contributing editor applies only to that last part or the entire thing. However, as this License Agreement governs all work you do for them, I'm guessing that it's the term part that only applies to contributing editors. Meredith would still have to explain what it wanted and what it was paying.

  • Grant of Rights: The first subsection, (a), states that the following rights are exclusive, so be careful, because what you sign away you don't have. There is the first right to publish (first to be in print) in More. They keep that exclusive for six months after the actual publication date. If they delay, you cannot exercise other rights that would have the article in print until they finally do put it into the magazine. So, for example, if they delay by three months, you cannot license the use in another magazine anywhere in the world, although you could allow a movie adaptation. They also want "the right to reproduce and distribute the Work as part of the issue of the Magazine in which it appears, in print and electronic forms and in any other device, medium or mode of communication, whether now known or hereafter developed, throughout the World." That means they can reprint the magazine or put the magazine into an electronic database. But because that's as part of the issue of the magazine, the exclusivity of that is fine, because you can't reproduce it as part of the magazine without their permission anyway.

    The next part gets a little slippery. The have the first as well as the ongoing right to publish the article in electronic form on their web site. The right to put it on the web is also exclusive "from the date hereof until six (6) months after the first publication of the Work by Meredith." The question is what "first publication" means. They don't say print publication, so the minute they put it on the web, the clock on online use starts ticking for them, whether it's appeared in the magazine or not. After six months, they get non-exclusive rights to have it on the web. Personally, I'd try negotiating for one month exclusivity, online or print, and then try to compromise at two to three months instead of six, which seems too grabby. But that's me. Happily, they specifically mention the site address - www.more.com - so they can't use it on any other Meredith-owned site during that period. Then there is subsection (b).

    After the exclusivity period, you grant an ongoing non-exclusive license "to use the Works, including, but not limited to, the right(s) to print, publish, display, perform, reproduce and use the Work in all forms, works and derivative works." That "but not limited to" is a tricky phrase, because it means they can essentially do anything with the Work that they want, including creating new materials based on it (even a screenplay if they wanted). I think that would also let them use the article on any other of their web sites, so it would probably be wise to explicitly limit them to putting articles only on more.com and not on other magazine web sites.

    The next part is "to edit, abridge, adapt, translate or modify or alter the Works," so they can change it however they want without your permission. Next, "to publish or authorize the publication of the Works and distribute and sell the Works in all devices, media or modes of communications, whether now known or hereafter developed, throughout the World." So they could sell it to people using an ebook reader like Amazon's Kindle, or even on the Amazon site, as a standalone article. That's what the "authorize the publication" does - let them tell others they can publish it.

  • Waiver of Moral Rights: Although US writers don't have so-called moral rights, writers in many other countries do, so if you're in Canada or the UK, you're giving up protections that you would otherwise have.

  • Payment: Payment is on acceptance, but there is nothing in the contract that indicates when that happens. A modification like "acceptance, which will not be unreasonably delayed or denied" could be useful if they are looking at it promptly.

  • Kill Fee: This is not a great version of a kill fee clause. The company may pay "at its option" a 25 percent kill fee, should it not accept an article. But that means an editor could decide not to pay. All rights immediately return to you if they pay the kill fee, but it actually doesn't explicitly say that rejection means all rights revert. I don't see how any court could keep you from taking the rights if they rejected the piece and didn't pay, but better to have these bases covered explicitly so you never have to get into a legal hassle. If they accept the piece, then they have to pay, but they don't have to use it and they retain their rights. That essentially puts the piece on ice. It would be good to add a clause that if they accept it, they have some period of time, maybe six or nine months, in which to make use of their exclusive rights or to lose them. If you own the piece, why should you lose all future value that they acknowledge you should have just because they don't do anything with it?

  • Verification: You are responsible for doing all the research and turning in a piece "in accordance with Meredith's customary deadlines," but there is nothing about what those deadlines are, so be sure they are explicitly put into the assignment. You have to retain all notes, drafts, etc. for three years, and you have to cooperate with their editing process and make all "reasonably requested" changes.

  • Subject Exclusivity: You cannot "write, publish, or cooperate in the publication of another work in any medium now known or hereafter developed on the same or a similar subject as any Work until the earlier of a) ninety (90) days after the date of the first publication of such Work by Meredith; or b) twelve (12) months after submission of the final version of the Work to Meredith." That should be restricted to directly competing publications. Why should you not cover the same topic for a completely different type of publication and audience? And there is a competitive publication clause later on.

  • Republication: If you resell an article, you have to credit them. Get them to change that to you'll make best efforts or, better yet, strike the clause. You cannot control what another publisher will do, even if it agrees to such a clause, and the insistence could make it impossible for you to make a sale, which is unreasonable.

  • Competitive Publications: This is a hidden stinker. You can't allow a magazine or web site "competitive to the Magazine or Site" to run the piece at any time, unless that magazine or site is owned by Meredith. There is a list that they include as an addendum, but they go on to say that this isn't limited to that list. Let them be satisfied with the list. By saying that you can allow republication in another Meredith title, I think they are essentially admitting that they don't have the right to run the article in another of their magazines, which would potentially be a contradiction to the material in the rights section. In short, push to say that they will only use it in the More magazine and web site earlier on.

    If you're a contributing editor, this is even stickier, because there is a separate clause stating that you cannot have anything you write appear in any competitive publication without their written approval. Not just something that you wrote for Meredith, but anything you write.

  • Use of Creator's Name: They can use your name, a bio that you approve, and your likeness to promote the article, no matter what Meredith magazine or web site it's in. A positive note is that they don't have the right to authorize another to use them.

  • Representations and Warranties: You say that what you write is original and not previously published or, if previously published, you have the right to license the material on an unlimited basis. If you got any part from a third party, you need written consent to use the material on an unlimited basis. This last part is actually a little tricky. That would technically include quotes from an interview, because once you record or write down what the other person says, they have a copyright interest in it. You could say that giving the interview is tacit approval, but this section of the agreement says that you need written consent, so to meet your obligation, you need a release for every interview subject. I'm not saying that the editors realize this, but, at least from what I can see in the wording, that is your obligation. There is the standard stuff about having the authority to sign this agreement and the full unencumbered rights to license the rights that Meredith seeks.

    Now we have another tricky part: "that the Works do not contain any scandalous, libelous, or unlawful matter; and that the publication of the Works will not infringe on any third party's copyright or other rights, including, without limitation, the rights of privacy and publicity." When writers question such clauses, editors say, "Why can't you guarantee that you won't plagiarize?" But while the clause says that you won't infringe copyright, it goes a lot farther, mentioning, without any limitation, other rights. Rights of privacy and publicity depend greatly on the specific law governing them. In this case, as the contract states later, the applicable laws are of New York State, so even if someone takes offense and takes up legal action in Canada or the UK, the definition of these rights would have to be examined under New York law. Also, it should be that what you write "will not knowingly infringe."

    You have to use best efforts to check the accuracy of non-fiction work and to avoid appearance of conflict of interest. There is also a sentence where you say "Creator will hold Meredith harmless for any breach of these warranties and agrees to cooperate fully with Meredith in responding to or defending against any third-party claims relating to the Works." Good news is there is no indemnification (the lack of which doesn't mean that a publisher cannot sue you if it thinks it is spending money for a big mistake on your part). The hold harmless is for any breach of the warranties. As you are making the warranties, I think that you would have to be the one to breach them, and if you do, you cannot sue Meredith for that. However, if there is a problem because Meredith made a change that caused the problem, I don't think you'd be limited from suing them.

  • Termination: Either party can terminate the agreement or any of the schedules (read that as assignments) with 45 days notice. So, you could get an assignment and, if it were due longer than 45 days out, have an editor cancel it.

  • Confidentiality: You can't talk about what you know is coming up in the magazine, or about story ideas or sources that don't end up in an article. Also, you're not allowed to discuss or disclose the terms of this contract, a type of clause I don't particularly like, as writers talk and should be able to.

  • Independent Contractors: You say that you're not an employee, you're responsible for your own benefits and taxes, and you get paid as an independent person.

  • Entire Agreement: If an editor says, "Oh, don't worry about that clause, we wouldn't enforce it," worry. This clause says that no such comment, whether verbal or written, would have any bearing on the contract as it is.
  • Governing Law: New York State law governs the agreement, which is good. But if there is any kind of legal dispute, you are agreeing that you have to resolve things in the courts of either Des Moines, Iowa or New York City.

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Friday, March 28, 2008

Watching the Writing Markets During a Recession

I've written about some ways to try and anticipate some of the market problems that might come up during a recession, but it's also worth examining what some experts see for the next year or two. MediaDailyNews has an interesting article on what recessionary impact might be on various types of media distribution. Some of the conclusions are obvious, and some are surprising.

Traditional media gets hurt

There's something you could have predicted easily. The credit markets are down as is consumer confidence, and there are "lower sales in the automotive, technology, and packaged goods categories." That means pressure on ads and ad agencies - and the places that the ads run:
TV and consumer magazines should be able to hang tough, say industry observers--but it's not a pretty picture for radio and newspapers.

TV limps along

There might be a little loss of ads on television, but not overwhelming. Not like most freelance writers get directly affected by that.

Magazines are a mixed bag

Samir "Mr. Magazine" Husni, chair of the University of Mississippi journalism department, and one of the leading experts on the magazine market, thinks that successful titles targeting luxury markets will probably be fine. (UPDATE: I added the successful with the intent of noting that some luxury market magazines simply won't make it. And here's a blog post at the Wall Street Journal making the same point.) Mass market magazines will see a drop in ads and might well increase news stand prices - meaning a 6 to 12 month slump in news stand sales, which, I'll note, can affect how much advertisers are willing to pay. So, expect many titles to get thinner or push shorter article lengths. However, in an interesting twist, Hasni expects new titles to launch. Surprised? Apparently Fortune, Esquire, and Entertainment Weekly all launched during recessions. It's easier for new publications - if they have the funding, I'd think - to compete with established titles. Then when the market improves, the new magazines float upward as well. But I would emphasize my well-funded addition. If ad markets are soft, it's much harder to bootstrap to success. Be sure that new titles are from well-heeled companies.

Newspapers in pain

They were having trouble before, and the recession is just going to make it worse. I'm already hearing stories from some writers who are finding that their newspaper clients are reducing freelance budgets and even asking the writers to reduce their fees. This will only get worse with the ascendancy of Internet publishing and ads. If you've been doing work for newspapers, now is really the time to reconsider your business model and see whether there might not be a better way for you to go.

Radio markets sound bad

The market for freelance writing on radio is pretty poor normally, so as radio stations take a downturn along with papers (though maybe not as extreme), it's going to get worse. Funding for NPR is tighter as well. I'd classify this as a "

Online

Analysts figure that the Internet is going to scream along even more strongly during a recession. According to Jupiter Media, so says an Ad Age story, alternative media spending has jumped 22 percent over last year. The analyst firm is forecasting another 20 percent jump by next year. Part of that is because advertisers have less confidence in traditional media - and part of that is because marketers cannot easily show how effective particular outlets or campaigns are. However, what the heck does alternative markets mean? That gets tricky: interactive marketing; banner ads; behavioral targeting (following someone's activities on the web); and even branded entertainment, which includes "event sponsorship and marketing, paid product placement, advergaming and webisodes." As MediaDailyNews notes, it's unclear exactly where any of that money will end up - and so, it's unclear how much will translate into sponsoring content that needs writing. Much of it goes into search advertising, and that only drives content indirectly. But it's important, and even people doing straight editorial online need to understand the basics of search engine optimization as it applies to writing. That means a lot more than "stuff in as much keywords as you can."

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Thursday, March 27, 2008

Cry Me A River: Musician Billy Bragg on the Internet Underwriting Creatives Provide

A reader, catching up on her reading, forwarded a link to a New York Times piece called The Royalty Scam. In it, English songwriter and author Billy Bragg eloquently wrote about the inherent problem occurring on the Internet. In mentioning a conversation with the founder of Bebo.com - a social networking site that just sold to AOL for $850 million - he wrote the following:
In our discussions, we largely ignored the elephant in the room: the issue of whether he ought to consider paying some kind of royalties to the artists. After all, wasn’t he using their music to draw members — and advertising — to his business? Social-networking sites like Bebo argue that they have no money to distribute — their value is their membership. Well, last week Michael Birch realized the value of his membership. I’m sure he’ll be rewarding those technicians and accountants who helped him achieve this success. Perhaps he should also consider the contribution of his artists.
I agree with Mr. Bragg that there is a significant problem for creatives of all stripes. Also, anyone who's been reading my posts for any period of time knows that I'm not a fan of giving work away, whether for "exposure" or not. (Bragg points out that he gets exposure from radio stations; the difference is that they pay for the use of his music.)

However, the Internet issue is also a thorny one because of "monetization." Companies that own sites must find ways to make money not just from their sales, but from their operations. This is a situation that has many CEOs biting their nails late into the night. On one hand, they pay a whopping amount to acquire the social media sites because they're sure that if they don't, their companies will be left behind. But on the other hand, they can't figure out how to make money online.

I don't mean to point this out by way of excusing the system, but rather as a form of explanation. Many of the now hot Internet sites depended on investors for enough money to operate. When they sell, the investors get the money, and there are still those jobs that were created. But the real elephant in the room is that making money is far more difficult than any of the Internet cheerleaders want to admit.

So, do you give a cut to the musicians, particularly "the fledgling songwriters and musicians posting original material onto the Web tonight" whose "first legal agreement that they enter into as artists will occur when they click to accept the terms and conditions of the site that will host their music"? It would seem fair, but how do you calculate it? What is the value compared to, say, the amalgamation of posts and profiles that draw people to sites?

I don't have an easy answer. If I did, I'd be making a whole lot of money from knowing it. The one thing that is clear is that the start-ups, even as they get big, don't have the cash resources to pay everyone, and the corporations that buy them do so assuming that the business model of free content is going to remain. Otherwise, they would need to see enough cash to pay people.

We can draw a lesson. Your work may be wanted on the Web, but you can't depend on others to make a living for you. You must do that yourself. If you're going to use a site to promote yourself, either be comfortable with the thought that you'll never see a dime, or start developing business models now that will let you make money. Perhaps you need a link to an online store. Maybe you need people to come to your own ad-supported site. But certainly you cannot depend on others to make your business work for you. That is your job.

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Wednesday, March 26, 2008

Dealing With Rejection

Heather Boerneris addressing hte topic of rejection on her blog. That got me thinking about the topic and sending her a reply to a LInkedIn message she had sent out. But I thought I'd also look at the topic here.

Rejection is a constant companion for the self-employed. In fact, ask a group of experienced freelancers about the most important qualities for success, and not getting bogged down by rejection is one of the answers you'll inevitably get. The reason is that success in freelance writing comes from reducing the inevitable amount of rejection you'll get.

It's easy enough to say, "Develop a thick skin," but that doesn't explain why it is necessary. If you've been writing for any period of time, imagine what would happen if everyone said yes to everything you proposed. You'd drown in work and have no life. Getting work depends on hitting the right person in the right company at the right time with the right idea and right background to carry it out. That's a lot of right. The odds of that happening each and every time you send out a letter of introduction or query - given how much is completely out of your control - is unrealistic.

To get down from rejection has three parts. One is normal disappointment. I'd really like to know that the work and money were coming in, but they're not, so I have to move on to the next prospect.

Another part is not so normal, because it involves taking rejection as personal failure when you don’t accomplish what literally cannot be done. One is when the freelancer takes everything personally. Do you agree with your significant other on everything? Probably not, and you’re far less close to your clients, so why expect that much acceptance? You may be involved in your business, but you are not the same as your business. Focus on your decisions and the efforts you make, not on others.

The third problem is when you view each rejection as a threat. It’s not. Rejection works two ways, and you constantly reject clients – by not pitching them, by turning down projects that don’t make sense for you, by negotiating different terms than they originally wanted. It’s a game of numbers, and you need to make enough efforts so that, on the whole, the numbers break your way.

There is enough heartache in the world; why needlessly manufacture more for yourself? Clients aren’t family, friends, or lovers. They’re people who pay you to do something. Keep some distance and save the bitter rejection tears for those times that they are really warranted.

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Tuesday, March 25, 2008

ProfNet Update

Yesterday I noted that someone was re-posting ProfNet queries onto an open site on the Internet. I have a call today and was told that things looked resolved, but would get an email when it was official. Just got the email:
The queries issue has been resolved. The site has been taken down and the person's ProfNet account has been terminated.
It's good that this particular episode is over, but this isn't the first time that it has happened. I'd say that anyone using ProfNet or any of the other query distribution services will have to be someone circumspect going forward and assume, like you must with anything written, that it could come back to haunt you publicly.

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Long Story of a Writers' Mag

No big epiphany here, but thought that people might find an AP article on Writers' Digest interesting, as it goes through the history of the publication.

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Monday, March 24, 2008

ProfNet Queries Posted for Open View

Many freelance writers use ProfNet to find potential sources that might not easily be located through other methods. In the past there have been some incidents of queries being made public, but now it appears that Vox.com is publishing entire ProfNet feeds on an open web site.

I just found one of mine up there, which is disturbing, because it now is open to anyone, including competitors of my clients. (I typically have used ProfNet to submit queries on some topics, but have restricted their being circulated to media companies.) Also, the contact information for the people submitting queries is also published, meaning that you might find yourself being put on various mailing lists without your permission.

Although I've used ProfNet for years, I'm wondering whether it's time to stop using the service. It would be a pity, as there are times I want companies that have certain experiences or background and doing searches of news stories would be unlikely to turn up what I need.

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Adding a Domain Name to Your Blog

You might have done as I did and created a blog (or more than one) in your main domain. For example, when someone wanted to go to my Flash in the Pan blog, they'd have had to type:
www.eriksherman.com/the-pan
However, that looks pretty clumsy. But it turns out that there's something you can do. I went to GoDaddy and got the domain FlashInThePan.org. Then I forwarded
http://www.flashinthepan.org/
to my blog and used masking (a feature built into the forwarding system) to have "Flash in the Pan" pop up on a browser instead of the longer URL. Click on each link to see the difference. This approach gives you a way to add a domain after the fact and even expand a blog site so that you could actually sell the domain name in the future if you wished. Note that this feature is probably available at many domain registration and hosting companies.

Here's another thing to consider: if you want to keep multiple blogs, or even multiple sites, you can use this domain name redirection trick to have all the people who think they are going to different sites to actually end up at the same domain. Although I don't know for sure, I'm pretty sure this starts driving up statistics on your whole domain, and will help drive up search engine results for anything on any of the sites.

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Friday, March 21, 2008

Warning: Natural Solutions Paying Slowly

If you write on alternative medicine and other non-conventional approaches to health, Natural Solutions (formerly Alternative Medicine Magazine) might seem a natural, but according to recent reports from freelancers, doing so could do some serious damage to your cash flow.

What brought the topic up was a flood of posts on the Freelance Success board from people who said that payment was taking upwards of five months. For example, one writer told me that she had written a piece in the summer and told to invoice on September 2007. The contract, which I've seen and reviewed, says that payment is supposed to come in 45 days. This writer was finally paid in early February. Even if we assume that the invoice arrived toward the middle of the month, that is still 4 1/2 months to be paid for a piece that was already accepted.

Another writer mentions having completed two pieces in November. One of the pieces, slated for the April issue, was a short for which the writer had heard no feedback. "I repeatedly attempted to get feedback or invoice info from my editor, and finally did on 4-Feb, when I was told to send my invoice," the writer says. The person has not been paid. However, the lack of feedback meant that acceptance was withheld, so payment was now not technically due until mid-March (it still hasn't arrived as of the time of writing). As there were no questions to the writer, the piece could have been accepted as was back in November, suggesting that a January payment would have been reasonable. Yet a third writer completed a "rush job" in November, and the piece ran in the March issue, but as of yet has not been paid. Even more disturbing was a writer who had pitched a story idea in November. Three months later, in February, she followed up. Apparently the magazine decided to use the pitch as is as a short piece, and the writer says she was never contacted about this. She immediately sent in an invoice but has yet to be paid.

I spoke with Natural Solutions editor in chief Linda Sparrowe, who came in about three years ago when the magazine, under the former name of Alternative Medicine, was going through a change in ownership and many writers were complaining about late payments. She admits that there have been "some absolutely slow payments," though she says that at least some writers have been paid on time. Sparrowe says that payments have appeared to get slower over the last few months, which coincides with a redesign, which apparently has caused the company to be "short of cash."

"Of course I know who gets paid and who doesn’t get paid," Sparrowe says, though she also stated that she was surprised that many writers were complaining. "It is a concern to me." She does stress that everyone has been paid, though obviously not under the terms of the contract. Sparrowe also says, "I try really hard to get [freelancers] paid," but that she is not in control of cash. Check runs are every two weeks, and she puts in a list of who she needs to pay, but the ultimate decision of who is paid and who isn't is up to company management.

I brought up the issue of the contract. I double-checked with publishing attorney Anthony Elia about my suspicion that when payment continues, on a wide basis, significantly beyond the contractual terms, then there may well be grounds of claims of fraud. Generally contract breaches do not rise to the level of fraud, but when there is a pattern of behavior that shows a company is making promises that it reasonably well knows it will not keep, that it is not doing business in good faith, and that could make the breach a fraudulent action. She expressed surprise and concern about that and said she would talk to management and alter the contract going forward to include a more realistic payment deadline. She said that without speaking to management, she could not say what that period should be, but that I could contact her next week for an update.

I've never done business with the magazine or editor, and don't know the inner workings. However, I will say that a significant increase in time to payment is a classic indication of financial trouble, particularly when the editor says, "We're paying out as much as we're taking in." In my opinion, that would mean there is no cash cushion to allow for smoother operations, and that puts business operations into a risky state. My suggestion would be first to not query the publication until a contract showed a realistic time scale for payment. That might be a longer time than you are willing to wait, but better to know it up front. Second, my own inclination in such a situation would be to hold off for a significant period of time - at least six months if not a year - and wait to see if payments started to come more quickly. Continued slow payment would suggest consistently poor cash flow, which could mean that the client was not financially stable and you could potentially find yourself lining up with many others, dealing with a bankruptcy court. Just ask the people still waiting well over a year for payment from the company that used to publish Pages.

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Taking Low-Paying Work

In response to my post about tips for writers during fears of a recession, a reader responded with the following:
Your latest email is great. I think there’s a #10 issue to address: whether to take on work that pays less than your normal rate because some money coming in is better than none. This is an issue that we go around and around about online, I know, but it’s a very real one, especially in this economic climate. Yes, taking lower-paying work will take time away from my marketing for better gigs, but I need to pay the mortgage, too. I know I’ve seen you opposed to doing this, in general, but you might want to revisit the issue and examine it from both sides.
Happy to oblige. What I oppose is taking low-paying work when that becomes a reflex action to any business difficulty. The problem is that you set yourself up in a few ways:
  • You generally have to work more with low-paying work to make a living, which means that you end up cutting down your marketing time and reducing the chance of getting something that pays reasonably.

  • Often writers point to an effective per-hour rate that seems reasonable. That may be true for the off-piece, but those who do significant amounts of such work don't generally seem to do that well overall. That's because you still have to spend time getting the work in and managing the flow. Now your marketing needs increase, because an increased set of assignments means you must bring them in. So you're cutting down on the time available for that lower-paying work and putting a ceiling on what you can earn.

  • It should take about the same amount of time to do a competent job on a given length assignment; it's independent of the pay. To decrease the time and increase the hourly rate, you cut corners. Read the writers' boards and you'll see how many people complain about having the do the extra interviews, concept planning, rewrites, etc. That means, to some extent, you must do less than your best, and certainly less than would be required with a higher-paying and more demanding client. You end up turning the writing into factory work. Those who want the commodity writing excuse their lower pay by lowering their expectations. However, if you do this all the time, you end up with a lot of work samples that, to a more discerning client, will speak of such factory work. To put it bluntly, when you skimp, you make yourself appear like a hack to the clients you really want to attract, who then are less likely to use you and you do more of the low-end work. It's like the old concept of company-provided housing and a company-owned store; you never get to make enough to get out from under.
All that said, the reader who emailed me is right. There may be times to take lower-paying work. If you have to send off the mortgage or rent, you need money to do that. But given the above discussion, I think there are a few principles to follow when taking lower rate work:
  1. Don't discount. You want to preserve the ability to charge more, because that makes a living easier to get. So don't drop your rate with regular clients in a hope to attract more work. If they are regular clients, then they know what you're capable of doing. If you start taking less, you will continue to take less, because you've said through your action that what you do is actually worth less.

  2. Limit the exposure. Treat lower-paying work as something literally to make your nut. Keep marketing fiercely to make it as unnecessary as possible. Continue focusing on getting better-paying work.

  3. Balance the value equation. As I teach in my various classes, business is a value equation. You provide value and expect value in return. I don't believe in cutting corners. If you get paid less, still treat the assignment as seriously as you would any. But try to balance the equation to get enough value back in one form or other. Low paying assignments will have to turn around cash quickly enough, be limited in the rights they get, or possibly sit on research you've already done. If you can't make it a naturally more acceptable assignment, then you should pass on it.

  4. Incorporate it into your business model. Low-paying work can be a distraction when you just react to it. So don't. Make the lower paying work part of your business model, even if only while economic times seem tough. Have a strategy for it, set boundaries for how you deal with such work, and stick to them. That way you reduce the possibility of losing a grip on your higher-paying "real" work, and increase the chance that the two work streams will harmoniously co-exist.

  5. Don't buy someone else's PR. Economic downturns are funny things. They don't affect everyone and everything evenly. Don't go into lower paying work from a panic. Instead, watch how things are going in your usual work. Are you sure that any problem isn't a result of your letting up on your usual marketing? (That can happen too easily to any of us.) Try doubling up on marketing first, unless you're in a cash crisis and the turnaround on such efforts will take longer than you have.

  6. Don't buy someone's negotiating tactic. Sad as it is from a view of humanity, there are people who will try to use a recession as an excuse to reduce what they pay, even though they don't have to. But it's not as though you can find a way to work more cheaply as manufacturers often do. Maybe you can to some degree, but be wary of any client who tries to strong arm you into what is unwise for your business. Another way of putting it is that there are poorly-paying clients, and then there are cheap clients. The latter are generally ones to avoid, because they're not providing value in other ways. They just want something for nothing.

  7. Don't panic. Douglas Adams had it right in the Hitcherhiker's Guide to the Galaxy. The biggest mistake you can make is to freak out. Take a deep breath and consider all your options in dealing with an economic crisis. Some of those might include borrowing money, negotiating with creditors to spread out payments, or reduce expenditures. The more creative you can be on money, the more space you can make for smarter business decisions.
It may be that a recession will force you to consider lower-paying lines of work, and that can be part of life. But if you have to go there, do it with your eyes open.

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Wednesday, March 19, 2008

Nine Tips for Writers During Recession Fears

What kills business isn't a recession so much as the fear of one. I don't just mean the overall economic effect, but the paralysis that can happen when you own a business and start thinking that you are the plaything of inevitability. You aren't. Here are nine tips you can use to strengthen your approach to doing business during a recession:
  1. Market more - a lot more.

  2. Don't be picky about topics. You can focus on the "but I *love* to write about XYZ" when you can afford to.

  3. Look not just at the clients (and advertisers), but the industries. For example, the legal industry is often considered to be virtually recession proof, because companies need lawyers to do the deals when things are good, and bankruptcies/restructuring debt when things are bad.

  4. Read trade press and talk to other writers to see if a given publication shows any of the signs of financial trouble. Ziff Davis just went into bankruptcy, but the signs were there for a while - one reason I didn't try to get work out of them.

  5. Look for signs of trouble in your own clients. If checks start taking longer to get to you, start looking for other people to work for.

  6. If you have a knowledge/experience niche that gives you a strong in with certain types of stories, strengthen it. If you don't, develop a niche. And keep adding niches as you can.

  7. Don't put all your eggs in one client type basket. If you cover a topic for consumer pubs, see if there are things you can do for trade pubs as well, and vice versa.

  8. Don't end up using a recession as an excuse: "I can't do any better because of the economy." When most everyone is marching in one direction, go in the other to find opportunities.

  9. Look for companies that are more likely to keep producing written materials. An association magazine is one of the better examples, because if they're not sending something out to the members, it's probably because they're out of business. A custom publisher is a lesser example, because when companies feel the pinch, the custom publishing projects may be some of the first things to go, unless not having the publication is unthinkable for their businesses.
If it makes you feel any better, during the last major recession, right after the dot com bubble, there were writers who didn't see big drops in their income. Keep working away and, even if things aren't pretty, you can weather the storm.

Update

A reader emailed, asking me to address the issue of taking lower-paying writing to fill in cash needs. Here's my take on it.

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Tuesday, March 18, 2008

Newspaper Publisher Facing Interesting Economic Times

Media General, claims to own more daily newspapers in the Southeast than any other company, is facing some potential economic shake-up. According to AP, the company is going to meet with a hedge fund that wants to nominate directors to the company's board:
Last week, [hedge fund Harbinger Capital Partners] said it is nominating a slate of candidates for the company's board because Media General "has lost strategic, operational and geographic focus in recent years," according to a filing with the U.S. Securities and Exchange Commission.
When a hedge fund wants to place directors on a board, it's generally because it doesn't see enough short term profits from the company, which could turn into return on its investment. The changes the directors might push for could run from smarter strategic directions to cost cutting and even selling off properties.

Media General owns The Tampa Tribune; the Richmond Times-Dispatch; the Winston-Salem Journal; 22 daily community newspapers in Virginia, North Carolina, Florida, Alabama and South Carolina; and more than 100 weekly newspapers and other publications. If you are writing for a Media General paper, then I think it would be prudent to assume that there will be continued belt tightening, incluidng smaller freelance budgets and all the joys that brings to people like us.

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Monday, March 17, 2008

The Memoir Market

A few weeks ago, USA Today ran an article about the memoir business. It quoted Michael Cader, who produces the newsletter Publishers Lunch and the site Publishers Marketplace, as saying that memoir sales were actually up last year:
Michael Cader, who tracks book deals for his electronic newsletter, Publishers Lunch, counts 295 memoirs signed by publishers last year, compared with 227 debut novels and 214 memoirs in 2006.

Memoirs accounted for 12.5% of non-fiction deals, up from 10% in 2006 and 9% in 2005.
Cader tracks deals, so while this may not be complete representative, I would look at that data as important and informative. The article also mentions, without providing the source, that "most memoirs sell modestly with first printings between 10,000 and 30,000." That number seems pretty damned high for an average.

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Sunday, March 16, 2008

News and Photo Copyrights

There are some significant questions as to whether the press has a right to post the photos of the woman who allegedly had a sex for money relationship with former New York governor Elliot Spitzer. In my FotoCounty blog, I mention a piece in Photo District News as well as an angle that I haven't seen yet covered.

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Friday, March 14, 2008

Contract Review: CurtCo - San Diego Magazine

When this contract came in, I thought of the one from CurtCo that I reviewed last October. However, the two documents are completely different, so I thought that a separate review would make sense. As always, I'm not a lawyer and these are my opinions, not legal advice. Also, just because I have a critical view of something in a contract doesn't mean that the publisher is unwilling to remove or alter a clause. Doesn't mean that they're willing, either, but if you don't ask, you don't get:
  • In the very first paragraph, there is an unusual phrasing: that the commission is "to prepare and to supply by the below-specified date the following article for proposed inclusion." Proposed inclusion? I don't know that has any negative connotations, but, boy, it sure sounds tentative.

  • Following that is the name of the article, the content, length, and delivery date. Unfortunately, the content description can be cryptic, so you should get a full description in an email. Because there is no clause specifying that the contract is the whole of the understanding, you'd have an argument that an email from an editor could be considered an amplification or explanation of the document.

  • Next, if they accept the article, you get credit as author and get paid within 30 days of publication, which is not good. If publication gets delayed, so does your pay. And what happens if they accept the piece but never end up publishing it? Remember, the contract is for the proposed inclusion, and even if it wasn't, this is a typical danger of a pay-on-publication arrangement. It would be best to negotiate some language to give a date past which they have to pay you.

  • In the same paragraph, you say that you won't include anything other than your writing "except for such excerpts from copyrighted works as may be included with the written permission of the copyright owners." If you're working on any kind of investigative piece, this could be a problem. What if you got a document that provided critical information, and you needed to quote a passage? I'd argue that you said in the contract that you wouldn't do that unless you obtained permission - even if you were clearly within fair use as allowed by US law.

  • Furthermore, in the same paragraph, you promise that the article "does not infringe on patent, statutory, common law or proprietary right of others, or contain anything libelous." Although there is no indemnification clause in the document, so the risk is considerably less than might be otherwise, those are broad statements. As the contract also doesn't specify under which laws the contract is interpreted, you could, technically, be in breach of the contract under some obscure set of laws, somewhere in the world, assuming that the material is available there. (And if it's on the web, it's available.) I'd at least want to include that this was understood under US law and that it it will not "knowingly" infringe or contain anything libelous.

  • Finally, another paragraph. The magazine can edit, retitle, or revise the article. You should get to see edits before the piece goes to press, and you should have the option of removing your name, just in case you find that the final product is now a professional embarrassment.

  • The next paragraph has some very confusing language in terms of rights. The reason is that the magazine is trying to define first North American publishing rights (note, that's not the same as First North American Serial Rights) as something far more expansive. The phrase should mean the right to be first to publish in North America, which could mean something other than traditional print. But then the contract goes on to include "the right to copyright the article and all renewals thereof in the name of Curtco/SDM, LLC, as well as the right to reproduce, republish and/or reprint it in whole or in part, in any print or other media now known or hereafter devised." So while they use the first North American to set up an expectation of what the rights mean, they're saying that they have the right to copyright the article in their name. This is even more confusing, because you don't "copyright" an article - it already has copyright. You can register copyright, but that would mean that you are essentially ceding the right to hold copyright. However, it's not clear that it gives them exclusive rights beyond being the first to publish in North America. They do have rights to republish and reprint in any media, but it doesn't say that they have the right to license others or to syndicate. Normally that would come with copyright, but the wording is just too strange to bet on what it would mean. Best to get really clear between you and the publication exactly what they think they are getting, and then decide whether that is acceptable to you. If so, they should change the contract so it says what they mean, and not a jumble of phrases that could be expensive to work out in court.

  • In the same paragraph, the magazine can deem that the article is "unacceptable for publication" and pay you a 25 percent kill fee, with all rights reverting to you. It might be good to negotiate that this is based on reasonable judgment based on normal industry standards.
This also tells you that CurtCo isn't necessarily monolithic in its approach to contracts. If an editor says, "this is the only contract the company has," you can point out that other publications in the corporate holdings have different contracts.

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Thursday, March 13, 2008

Warning: Possible Infringing Site

On a discussion board, a writer mentioned having found a piece she wrote for Health Magazine appearing on a site called Healthy Park (or Healthy Book). The writer gave me permission to pass this on. She said that what she wrote was owned by her and not available for use elsewhere without her permission. She also noticed a number of other Health writers' work on the site. I did some checking on Whois (the way you find who owns a domain), and the person is based in Beijing, and there is no email address listed. In other words, forget about trying to get in touch with the site owner, let alone get paid.

However, the ISP is Enom.com, which is based in Washington state. That means it is subject to the Digital Millennium Copyright Act of 1998, or DMCA. You can issue a DMCA take-down notice and have the ISP remove any copyright-infringing material. For information on how to formulate and file a DMCA take-down, click here.

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When Is It Worth Chasing Online Infringement?

At a UK journalism site, there's an interesting Q&A with a lawyer about when it's worthwhile going after online infringement. Notice that the issue isn't whether you can, but whether you should bother. It's couched in terms of corporations, but just scale down the considerations (and the enforcement budgets), and there's something to learn for freelancers.

You could actually bring to this the idea of asymmetric threats, that you hear so often in a terrorism context. In this case, there is a low barrier to entry, both in money and time, for someone to infringe on copyright. And yet, protecting copyright faces a slope that quickly steepens, with costs of taking most legal action quickly going out of the reach for smallfry infringers that don't have deep pockets.

I think we could start to develop a methodology for deciding how and when to take action:
  1. Review whether you have registered copyright for the item, or if you're still within the three month window of first publication. If the latter is the case, then immediately register the item, and don't wait until you "get around" to doing a group registration to save yourself a few dollars. If it wasn't registered and you've passed that three month period, then the best you can possibly do is use a DMCA take-down notice (check under Writers Resrouces on my blog site) to have the ISP remove the material, and maybe try bluffing to get some money.

  2. Look at the infringer and decide whether it is an individual, small business, or mid-sized or large business.

  3. Is the person or organization actually making money off your work, either by charging for it or using it as marketing?

  4. Start with contacting the offender. If the person just seems to be a fan, either have them ask for permission and provide a link to your own site, or ask them to remove it. If the person doesn't, use a DMCA take-down notice. If the ISP is not in the United States, then you are out of luck and it's not worth pursuing any further.

  5. If the site owner is a company making a business use of your work, send a demand letter, by certified mail, with an invoice for what you want to charge. Make removal of the material contingent on keeping the cost down (unless they decide to license it). If they want to settle for some smaller amount, take it and then use a DMCA take-down to get the material removed.

  6. If the company is bigger than a mom-and-pop undertaking, then consider pressing your demand more strongly. But check wtih a lawyer how much it would cost to head to court. You may still decide that a DMCA action is the most effective use of your time.
Why reduce things to a specific process? Because that can take the gut knotting out of deciding what to do and let you quickly get to a point of knowing how you are going to handle a given situation.

So, all you conscientious and contentious writers and other creatives out there, does that make sense? Any sugestions for modifications?

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Happy Copyright Awareness Week!

What, you think I make this stuff up? From March 10 through 14, we celebrate the protection that is copyright and try to teach students (and others) to respect the intellectual property of others. Take an article to be registered this week.

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Wednesday, March 12, 2008

Contract Review: Luxe (Sandow Media)

Please remember that I'm not a lawyer and that this isn't legal advice:
  • Clause 1: Deadline Be aware that the deadline clause not only includes one for the article draft, but a second one, that can be only three days later, for any revisions. Be sure you're looking at your work calendar before agreeing to this - because there is nothing that says you're going to get the revisions back the same day you turn the article in. What if you get questions or notes - or a major revision request - the day you're due to respond?

  • Clause 2: Rights In (a), you provide "exclusive worldwide rights to publish the Work in all languages and in any and all editions of any or all of SMC, its subsidiaries and/or affiliates magazines and/or books ... including but not limited to editions in electronic form" for five years from the date you turn it in. That will kill much of the market for anything but the more resilient of evergreens. However, there is more. In (b), you turn over exclusive rights to republish pretty much anyplace, and without a time restriction. In (c), you provide exclusive rights to license the piece to others, also without a time limit, and in (d) you provide exclusive rights to reproduce the work or parts of it for advertising, sales promotion, and publicity pieces, also without any time limitation. I'm not sure that leaves anything you could do with it at all at any time. Between the republishing and licensing being covered exclusively forever, traditional and electronic publishing are out. Could you sell rights for a movie deal? I'm not sure that you could, because you've given up the right to license the material. In short, this effectively ties up all the commercial rights, whether directly stating them or not, forever. You keep copyright, but there's nothing you can do with it.

  • Clause 3: Payment You get a fixed fee, nothing more, and that only comes "after final acceptance," but there is no definition of when that happens. I'm guessing that it's after any changes you do, and, maybe, not until it gets signed off before it goes into the magazine.

  • Clause 4: Kill Fees Oh, this is painful to read. The publisher can decide, in it's sole discretion (whatever it feels like doing), even if the writing is "complete" and "reasonably acceptable," not to accept and to pay 30 percent of the original fee instead. Furthermore, it has a provision I've never seen in a magazine contract: "In the event that SMC accepts the Work but advises you that a rewrite by another person is required, and such other person does rewrite the Work, SMC shall have the right to reduce the Fee by the amount that SMC pays to have the Work rewritten or by 50 percent of the original Fee, whichever amount is lesser." If it says that it must have someone else do a rewrite - read that as editor, folks - then it can take out either the fee paid to that person or half of the original fee. There is nothing to say that the rewrite has to be done by someone someone who isn't an employee.

  • Clause 5: Representations and Warranties In (a), you say that you own the rights and that the piece hasn't been published before. Fair enough. In (b), you say that you won't publish, and won't let someone else publish, the piece for one year from the submission deadline. But don't start thinking that you can do something with it, because that doesn't change the interpretation of the rights clause. I think it's just a bit of sloppiness on the part of the lawyer who drew this up. Subsection (c) is a problem. You say that the work "contains no matter that is obscene or libelous and does not infringe upon any statutory or common law copyright, proprietary right, or any other right of any person." But there's nothing that indicates the law under which this contract is understood. So if someone sues you in some other part of the world than the state in which you live, you're potentially in trouble. It would be good at least to add "knowingly" and something about this being interpreted under the law of some state that is reasonable in such issues. And (d) states, "No part of the Work is or will be known to be inaccurate or unsubstantiated by known fact." That leaves no room for an honest mistake, either on your part or that of a source.

  • Clause 6: Indemnification You knew this was coming. You have to provide indemnification not just from an actual breach of the representations and warranties, but an alleged breach. I view that as a deal killer.

  • Clause 7: Formatting I feel like I'm entering into the world of the strange. You must follow the formatting requirements in the publisher's writers guidelines, and change anything that doesn't adhere to the requirements. As I don't have a copy of the requirements, I cannot tell you what they involve.

  • Clause 8: Revisions You agree to keep making changes that the publisher says are necessary "until considered acceptable." There's no limit to the number of times they can have you doing that. They can edit the work and have no obligation to show you the final version before it appears in the publication. You also let them use your name and likeness in promoting the work - at least that is restricted to the article itself and not attached to the magazine or to what any of the company's business partners do.

  • Clause 9: Publication You get a "reasonable number" of copies.

  • Clause 10: Confidentiality You cannot talk about the publisher's "publications, business plans, future publications, circulation, business models and/or business methodologies and like information," unless that information is already public, or if a court says that you must. The public knowledge part doesn't apply if it is public because of "a breach of this obligation of confidentiality," but how are you going to know that?

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Tuesday, March 11, 2008

Reaping What You Sow

I've been having what for me is an atypical experience: working as an editor on a large special feature for a magazine to which I regularly contribute. the editor had me work with several writers, and I've been coordinating and editing a large number of short pieces. What I'm getting to see up close is just how badly a writer can destroy a business relationship and develop a terrible reputation.

It's been interesting to see how three specific writers fell into categories, and how little things colored how I perceived them. One writer was great. Copy needed some editing, but that didn't matter, as each piece was slightly longer then I had requested and had most of the information I might want. the next writer was pretty good, but not as good. The differences were subtle. For example, the second writer had a couple of delays (but communicated and kept me informed), used an odd font in the story files (I had to adjust them to make them readily readable), and took a while to include all the information I needed in the format I wanted.

And then there was the third. I was able to catch the person in one outright lie after another; learned that the writer had missed an interview with a subject without immediately following up to fix the situation; would email to say "I'll have XYZ done by tomorrow morning," only to have the deadline pass without a peep; would ignore more and more harshly worded instructions I'd send; never responded to a phone call; offering one excuse after another; and during all this, would pretend that I had never mentioned some things and keep talking about how the writing would "sing." Too bad it was all off key, trying to get away with as little effort as possible for the assignment and pay (which, by the way, was hardly bad) and keep every dollar of assignment, no matter how much that might have screwed me or the magazine up.

I bet that the writer still thinks he/she was a) actually clever, b) good, and c) reasonably decent to deal with. I talked to two editors I know who had dealt with him, and heard stories ranging from only slightly better to just as bad and even worse. When talking with a third editor who didn't know the writer in question (but who has now added the name to his "black list"), we joked about knowing all the tricks becsue we've been on one or the other end of them in the past. If you think that you have never done any of this at any time in your working life, even in youth, then you are probably fooling yourself.

However, the important question is how do you relate to the rest of the industry today?; Are you trying to shave corners? Do you do things "your way" because that's the way you like it? If there are problems developing, are you quickly on letting your client know and working out other arrangements as necessary? Even worse, do you think things are fine because you don't hear anything negative?

One editor I spoke with said, who heard how hard I had been on the person, said, "You've inspired me. I think I'm not going to use X any more." Sometimes editors keep writers around out of inertia. They don't get rid of someone and find ways to cope. But tolerance doesn't mean welcome. You should do your own self examination and see where there's room for improvement, and then work hard to make the necessary changes happen. Don't depend on inertia, because eventually something will bump into the client, and by then, rescuing the relationship may be impossible.

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Friday, March 7, 2008

Record Labels Keep Copyright Infringement Dollars - Nothing to Musicians

Although it's in the realm of music, I think it behooves any independent creative person to know what's going on in other industries. According to a story in Home Theater, little to none of the millions that record labels have taken through copyright infringement suits ends up in the hands of the musicians and composers who created the works in the first place:
For example, three of the four majors banked $270 million in the lawsuit against Napster (barring Sony BMG, because BMG owns Napster). And all four have made deals with YouTube. But musicians are still waiting for the penny to drop—into their pockets, that is. Their managers and lawyers are now threatening to file lawsuits of their own, this time with the labels as defendants.
Sure, there will be complications of who is owned how much, but the concerning thing is that a) they will take as much time as they can as interest mounts in the bank, and b) the "legal expenses" are eating up most of the proceeds. Now, if they can successfully sue, then they probably registered copyright in a timely manner. That would mean that they could have - and, I'd bet, did - sue for legal expenses. So they get money for legal expenses, and then hold on to all the money for legal expenses? Sounds like the sort of double-dipping that recording labels are known for. Any bets as to whether publishers would be more forthcoming in similar circumstances?

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Contract Review: Body+Soul

A review of the Body+Soul contract from Body+Soul Omnimedia, owned by Martha Stewart Living Omnimedia. As always, I'm not a lawyer and this isn't legal advice:
  1. Section 1. This clause basically sets the groundwork for the publisher to say that you really are a freelance writer, and not a de facto employee. No big deal here.

  2. Section 2. This contract isn't for one piece, but everything you do going forward, so don't plan on signing it and counting on getting something better later on. This may well be it. It says that, on request, you'll submit a revised draft with any changes they ask for, but it does seem to limit things to that one revision. On acceptance - and they don't define what acceptance means to them, which, as you should know, can effectively mean pay on publication for some companies - they pay you the fee you agree upon. (Remember, this is a general contract, so you have to make sure that specifics of pay, deadline, topic, etc. are specified in an assignment memo.) If they don't accept it, then you get a kill fee, and that, also, is something you and B+S must have agreed upon. Make sure it, too, is in an assignment memo. They need to approve expenses in writing and in advance, but you get them even if they don't accept the piece. Note this phrase: "You understand that your compensation will be the same regardless of the numbers of hours you work to complete the Project." That means, if it takes more time than you think, you are saying that you're being paid enough. The last sentence in this section states: "Acceptance of the Project shall be within B+S’s sole discretion, and B+S shall have absolute approval and control over the results of the Project. " It would be far better if it was within their "reasonable discretion," otherwise they can use a kill fee to compensate for some editorial screw-up or people changing their minds after the fact about assignments.

  3. Section 3. Again, this concerns setting the groundwork for recognition that you are a freelance writer and not an employee.

  4. Section 4. More about being self-employed - that they will send you a 1099 and that you're responsible for your own taxes, insurance, and what not.

  5. Section 6. This ensures that most of the rest of the contract - including parts discussion rights, warranties, and indemnification - survive the end of the assignment.

  6. Section 7. This is a work made for hire, which means they own what you write for them and are technically the authors of the material. It doesn't include notes; just the drafts you turn in. Even if they edit what you've given them, they still have the rights to what you provided, so you can't use what wasn't published and say that it wasn't covered, because it was. You don't have moral rights, which don't exist for US writers, but do for those of many other countries, including Canada. A real interesting addition is the last sentence: "You also hereby waive the right to seek or obtain any injunctive or other equitable relief in connection with B+S’s exploitation of the Work and any rights therein." In other words, they don't want any challenge that could force them to stop what they are doing. That may sound unimportant, but let's try a hypothetical. You write an article for them, and then have the idea of doing a book. Suddenly, they want to stop you, claiming that the book is a derivative work based on the article, and they start contacting publishers claiming this. Although a court can grant equitable relief, in which it forces a person or entity to stop a certain action, it couldn't keep them from talking to publishers, as you've given up the right to ask the court for that sort of help. I'm not suggesting that the specific scenario is even close to likely. However, waiving rights to equitable relief can come back to snap at your rear at the worst possible time.

  7. Section 7. They reiterate that they can do as they want with the material, which is their right. But, they also want the right to use your name, bio, and image " in connection with the businesses of B+S and any of its affiliates." That's not just promoting the article, but could be using you as a way to promote some other project based on the article, and you have no idea who their affiliates might be at any given time.

  8. Section 8. This is another section about portraying you as self-employed. I don't know why they didn't collect all this stuff in one place and take care of it at the same time.

  9. Section 9. Here's another problem tied to equitable relief. If you have a dispute with them, you are giving them permission to automatically get a court to provide them with an injunction against you or to grant some other form of equitable relief. Although you aren't allowed to have it, they expect you to authorize them to have it without a court even having a chance to rule it unreasonable. This is called stacking the deck in their lawyers' favor.

  10. Section 10. "You agree not to use or disclose to any third party for any reason whatsoever any material provided to you by us or any information regarding Martha Stewart, B+S and/or the Magazine which you may have learned (directly or indirectly) in the course of the Project unless you are required to use or disclose such material and/or information in accordance with this agreement or by law, or B+S consents in writing in advance to such use or disclosure." In other words, beyond not giving away information on what the magazine is planning, you can't talk to other writers about what you've been able to negotiation, what the pay is, or what the contract terms are.

  11. Section 11. Even more on being an independently self-employed person.

  12. Section 12. This is the warranties section. Take a look at the exact wording, because it's even more extensive than many: "You represent and warrant that (i) you have the right to enter into and perform your obligations pursuant to this agreement, and to grant the rights herein granted to B+S; (ii) the Work will be original to you; (iii) neither the Work, nor B+S’s exercise of any of the rights in the Work granted hereunder, shall infringe, violate or otherwise conflict with the rights of any third party; and (iv) you shall not challenge, dispute or otherwise act in conflict with B+S’s exclusive ownership of the Work, any rights therein and/or B+S’s rights in and to any name, trademarks, trade names, logos and/or other tangible or intangible property of B+S." First, you say that you can enter the agreement and that you own the rights they want. Fair enough. Next, your work must be original. Fine. However, item iii gets to be a problem. Not only do you have to promise that what you wrote will not "infringe, violate or otherwise conflict with the rights of any third party" ("knowingly" would be good, but at least it's interpreted under New York law), but that the publisher's exercise of those rights won't cause a problem. But that's a problem right there. Exercise of rights includes editing, adding material, rewriting, pairing the article with art, and otherwise do things that could, among other effects, cause someone to want to sue. It's not just what someone publishes, but the context that might lead the audience to interpret the content in a given way. And then, in iv, you agree that you won't legally challenge their rights. Now, I don't see why a writer would do that, or under what circumstances, but I get leery of any contract that wants me to forgo legal options for any possible situation in the future.

  13. Section 13. Now comes the indemnication - not just for B+S, but anyone it's doing business with - for any breach or alleged breach of the contract. That breach or alleged breach (which should be enough to kill the deal on its own) can be due either to the piece itself, but the use of the rights the magazine makes. And it's not for reasonable costs and expenses, but all costs, including all attorneys' fees and court fees, "without limitation." That's a non-start clause, from my view.

  14. Section 14. Once again, if they hurt you legally, you are agreeing that all you can ask for is money damages and no equitable relief. But would a court ordering them to pay something immediately now be considered equitable relief, because it went to controlling behavior and not assignment monetary damages? I don't know.

  15. Section 15. New York law is the basis for interpreting the contract, and that should be fine. But if you have a problem with them, including having to sue to get paid, you'd have to go to New York county in New York state to take action.

  16. Section 16. This agreement is the entirety of your understanding. If an editor says, "Oh, don't worry about that," worrry about that. The editor has no power to tell you that part of the contract won't apply. Any change has to be in writing.
All in all, this is a contract I would pass on.

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Thursday, March 6, 2008

Ziff Davis Media Files for Bankruptcy

The Associated Press reports that technology publisher Ziff Davis Media filed for bankruptcy yesterday. It's a sign of where some areas of publishing are headed - into the financial toilet. ZD has shown shaky finances over the last few years, and pay has been getting tighter. Obviously, it was for a reason:
New York-based Ziff Davis said in a court filing that it had about $500 million in liabilities and $313 million worth of assets, as of the end of December. It filed for Chapter 11 protection to restructure debt that had become burdensome.
Senior creditors - in other words, people other than writers, photographers, and photographers - are writing off a big chunk of the $225 million they are owed and getting at least 88.8 percent of the company's common stock as a result.

As for the more junior creditors owed a collective $275 million, the company will use the courts to resolve what they owe, and the courts have set aside $24.5 million to fund ongoing operations during the case and after it concludes.

Condolences to anyone who's been doing business with them. If you have invoices outstanding, I'd *strongly* suggest that you read up on bankruptcy, find out where they've filed, and start the necessary paperwork right away. If you are expecting pay, know that the courts will keep them from sending checks to anyone. Going forward, while the court has set aside operating capital, be sure that you can and will be paid, and know that there may be some supervisory authority that will have to review and authorize payments.

You can get burnt badly under the right (or wrong) circumstances, so if ZD is a big client, it would be wise to diversify immediately.

Update

I've heard through the grapevine that Ziff Davis Enterprise is not part of Ziff Davis Publishing and is, instead, owned by a venture capital group. If you're working for ZDE, you're not in the same boat.

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Resource: UN DESA Statistics Databases

The UN Department of Economic and Social Affairs has been collecting data in such areas as social and economic concerns, climate change, international development, poverty and hunger, migration, and sustainable development for decades. Now DESA is making all these statistical databases available for free, in a searchable form, through a single web site. You can browse though information or do a keyword search.

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Wednesday, March 5, 2008

It's the Archives, Folks

A story in Folio tells how National Geographic continues the argument that it can publish a software-enhanced CD version of the magazine without paying photographers additionally. The legal battle is going on 11 years, now. I won't recap the history; that's available at the link. However, I will note a specific paragraph:
“It’s the archive that’s at stake,” Angelo Grima, senior vice president and deputy general counsel for the National Geographic Society, said during a panel on digital rights at the Magazine Publishers of America’s Magazines 24/7 conference at the Hearst Tower Thursday. “We’ll go to the Supreme Court if we have to, because our archive is that important to us.”
Of course, this isn't just about photography. It's about "content." The real economic value of images or stories or graphics or video or audio is not the immediate market value of any single piece. No, it's having the collection - the entire collection - that is at issue. It is the collection that allows companies to sell rights to databases, to get advertising, to charge institutions for subscriptions. And every bit helps add to that value. That means the story you consider unimportant in the long run because it is timely, or short, or so specialized, has lasting value. Just because you don't grasp the value of a piece of antique furniture doesn't mean that you should toss the Louis XIV chair. No, you find out the value, and then figure out what you want to do with that value.

I know this probably seems like an old and tired argument to most of you, but it's vital and we have to remember it again and again. What we create has value. People want it because it does have value, both on its own and in a given context. When businesses want you to give up lots of rights, even non-exclusively, it is because they want to make money off what you have done. Don't you think it's only reasonable that you also make money from it?

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Tuesday, March 4, 2008

Review: Real Simple Freelance Writer Agreement

A fairly recent copy of the Real Simple agreement hit my inbox. Here's my review of it - and please remember that I'm not a lawyer and that this isn't legal advice:
  1. The first section mentions the working title of the article and an approximate assigned length. Unfortunately, there is no detailed description of what the article should cover. You should do that via a confirmation email or other written form that provides evidence of the details and approach. Also, it gives an approximate assigned length. I don't think that is anything to get too concerned over so long as any requests for additional material aren't too extensive. But if they are, remember that this is not a contract offering an open ended amount of writing from you for a fixed price from them.

  2. This clause specifies the fee if accepted. There doesn't seem to be a definition anywhere in the contract of what constitutes acceptance, nor of how long they can wait before they do accept it. It would be best to add something that spells these out. Also, there is a kill fee, but the clause doesn't explicitly say that the writer retains all rights, and no rights are transferred or licensed, if the article is rejected and a kill fee paid. Although I can't see a court saying that the publisher retains any rights, as it is rejecting the piece, it would be good to have the non-transfer of rights explicitly stated, so that there could never be a question.

  3. This is a work made for hire contract, so you would lose all rights to the article if they accept it. That means you cannot, without their permission, legally resell the article or even post it on your web site.

  4. There are no real restrictions on how often or to what extent they can have you make changes or do fact checking, as there isn't even a "reasonable" limitation on what they ask of you. That means if they typically run people through hoops, you'll be a-jumpin'.

  5. They don't have to publish the article, even if they accept it. If they don't publish it but pay you the full amount, you don't get the rights back.

  6. They can use your name, image, and biographical data not just to promote the article, but in advertising and in promoting the magazine. Practically speaking, this probably isn't going to be a problem.

  7. This clause states that you're not an employee and shouldn't expect any benefits.

  8. If you want expenses reimbursed, you have to get the magazine to pre-approve them, and you'll need to submit a "written accounting in a form acceptable to" the magazine.

  9. You work at your own place, but will "consult with the editors at their office (or by telephone or fax) at their reasonable request." Notice what is missing? Email. I'm certain that is a simple oversight, but one their lawyers really should correct.

  10. Now we get into something sticky. The warranties in this clause ask for the usual - no copyright infringement, no defamation, no infringement of third party rights, and so on. Other than the copyright infringement, I'd strongly suggest adding "knowingly" and making sure that these are all understood under US law. Unlike many contracts, there is no clause that states which laws are used to interpret the contract. That leaves open the possibility of being caught under laws that you don't foresee. For example, someone could sue you in the UK or Canada for libel, where the courts strongly favor plaintiffs, and not the writers as is true in the US. Furthermore, there is an indemnification clause in which you are supposed to indemnify Time Inc. for a breach of the warranties or representations, or for "an allegation which if true would constitute a breach." That, for me, is one of the deal breaker phrases, because even if you haven't done a thing, should someone accuse you, you're on the indemnification hook.

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Monday, March 3, 2008

The End of Paper Book Manuscripts?

Call it the beginning of the end - according to New York Magazine, Hachette Book Group has distributed Sony e-book readers to its editorial staff. Agents have to email files of manuscripts rather than sending paper. Apparently Simon & Schuster also has the devices (Amazon was too tardy with the Kindle), though only some of the editors actually use them. Unfortunately, there is no edit function, so editors can only read and not mark up documents, leaving some writers, I'm sure, cheering.

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