It's not fair for publishers to force freelancers to give up the electronic rights to their work.
By Bea Tusiani
Bea Tusiani is a frequent contributor to the New York Times and Newsday, and founder of The Writers Network of Long Island, a freelance writers organization.
Mid-level freelance journalists who fuel the publishing industry are about to become the next endangered species thanks to increasing numbers of major publishers who are demanding they give up electronic rights to their work. Like the early generations of television and music writers who signed away their rights before knowing the future earnings potential of nightly reruns, videotapes, compact discs and CD-ROMs, today's generation of freelancers risks losing income not only through the vast network of electronic media, but in media yet to be invented.
Independent writers have never been so vulnerable, and publishers of high-profile magazines and newspapers are going in for the kill with contracts that usurp electronic rights and, in some instances, all rights, without extra payment.
According to copyright publishing laws that seem to have been written in the Dark Ages, this is legal. However, such contracts are not necessarily judicious in terms of fair use of a writer's work in modern times.
The ASJA Contracts Watch, the rights bulletin from the American Society of Journalists and Authors, lists the San Francisco Examiner, Reader's Digest, Hearst Magazines and the Los Angeles Times among many publications asking freelancers to sign contracts giving away their electronic rights. According to ASJA, even more stringent contracts requiring that writers relinquish all rights, including copyright, to their work, are being offered to freelancers by Better Homes and Gardens, Martha Stewart Living and the New York Times.
Using freelance work, if not adequately compensated, is exploitive. Freelance journalists who write for newspapers are at the lowest end of the payscale. Simply put, the bread-and-butter of their independent operation has always relied heavily on the ability to resell articles to secondary markets. If these articles are now widely dispersed via the electronic media, no other publisher will want to buy them.
Other rights such as reprint rights, dramatic rights, serialization and foreign rights are standardly negotiated separately within the publishing industry. There is no reason why electronic rights should be treated differently. Companies that run or contribute to wire services and syndicates have the tools to keep track of where stories go.
There is a complacency on the part of well-known publishers like the New York Times, whose writers signed contracts without attempting to negotiate new terms. For the most part, many writers who were offered these agreements didn't have access to legal advice and were rushed into signing within three or four days. Some were afraid to lose their association with such a reputable publication.
Many who signed expressed discomfort at having done so. The following is a sampling of those expressions: "I'm not happy with the principle, it's unethical." "If the pay was better it might be more palatable." "There's no choice if you want to work for them." "I signed with a bad taste in my mouth." "If I take a stand against them a hundred other writers will be there to take my place." "It's a hold-up, it's not kosher."
It hasn't gone unnoticed that some contributors are being treated differently than others, suggesting a bias toward the elite. Big-name writers who contribute to large feature sections of the Times are being allowed to retain copyrights to their work, while those who do the scut work for the smaller sections day-in and day-out, often under the banner of a staff writer's byline, are not granted that same option. How ironic that a publication whose editorial policies champion the underdog fails to realize the plight of the downtrodden within its own ranks.
Freelancers who have a track record for consistently turning in well- researched articles on deadline, and without causing legal problems for the publisher, should be valued. Their sense of commitment to a publication for which they write can only impact on the public good. A monopoly over their work will force the best of them to look elsewhere for fair use and just compensation. Editors know this. Publishers don't.
ınfortunately, the current industry-wide downsizing will result in the survival of the very fittest freelancers, and in all likelihood they will be the ones who retain rights to their work so they can sell it over again and make a decent living. Unless a new approach is taken, serviceable middle-ground writers whose ears are forever tuned to pitchable stories will be replaced by hackers who are willing to crank out cheap copy to place between ads.
If a publisher is going to take all of a writer's words and use them forever, it would certainly reflect well on that publication to include its contributors in the discussion of what constitutes equitable use of their work. Additional fees or royalties based upon a percentage of a publisher's earnings are options that some large and small publications are already granting.
Contrary to what many may believe, freelance writers do understand that publishers are adjusting to a new electronic world in which the present options are overwhelming and the potential for the future, as yet, is unimaginable. In the balance, publishers who are equally sensitive to the concerns of their regular freelancers have the best chance of maintaining their integrity and reputation as leaders in the field of journalism.
The issue of electronic rights is one that deserves honest and open reassessment until its fairness extends to everyone involved. That will be achieved when freelance writers no longer feel that they are being taken advantage of by the enormously powerful ships that set the standards and drive the industry. ###