Inkwell: Authors and Artists

    
Drowned out by the uproar over MP3s and DVDs, a quieter revolution is
taking place in the print world. For decades, publishers and writers
operated on a tacit and often explicit agreement: one fee, one use.
Publishers essentially rented the use of writers' work, and writers
could resell their work over and over.

Today, publishers are demanding all rights to freelancers' work so that
*they* can resell the work over and over -- in databases, on the Web, to
other publications. They don't intend to share the profits. They aren't
paying any more to own the work than they did to rent it.  they haven't
raised their rates in years. In fact, when the American Society of
Journalists and Authors surveyed its members earlier this year, the
results were both shocking and depressing: many magazines are paying
less today than they did 10, 20, or 30 years ago. Imagine earning the
same amount today that you did in 1965. 

And, adding insult to injury, things are only getting worse. Freelancers
at the Boston Globe were recently presented with a contract that said,
in effect, "If you sign this contract, we own not only your current
work, but everything you did for us in the past. Our previous agreements
with you are null and void. And oh, by the way, if you don't sign,
you'll never work for us again. No, we won't negotiate; take it or leave it."

So writers are fighting back.

Contributing to, and coordinating this discussion are writers:

Farai Chideya is a print and television journalist who has also become
an internet entrepreneur, partly in response to market forces which
dictate that most writers will not only be poorly compensated, but very,
very aggravated. She plans to try to change things as much as she can,
in her own modest way.

Wendy M. Grossman is a freelance writer based in London and a former 
folksinger.  The full text of her book net.wars is online at 
http://www.nyupress.nyu.edu/netwars.html for free, and the MP3s from her 
1980 album are at http://www.pelicancrossing.net/roseville.htm, also for 
free.  Doesn't mean she doesn't want a cut if people sell them, though.

Fawn Fitter, co-host of the WELL's Byline conference for freelance
writers, has been a freelancer herself for the last decade. She's an
active member of both the American Society for Journalists and Authors
and the National Writers Union. She's perfectly happy to sell all rights
for a reasonable fee -- but a buck a word is nowhere near reasonable.
  

    
Of course, even before the current contract language was inserted,
freelancers rarely saw a dime for reproductions in electronic databases
such as Dialog, which apparently pay the publishers who have acquired
first serial rights to written works without regard for the fact that
in many cases the authors have retained the copyright.  There was a
recent decision in the federal appeals court in Manhattan that is very
favorable to writers on this score, though the database companies that
were defendants there are trying to take it to the US Supreme Court. 
Also, it remains to be seen whether courts will now look favorably
toward freelance writers seeking to even the score.

My question to the writers in this discussion is: would you prefer
sell outright your full copyright in a work, or would you prefer an
enforceable system to ensure payment for successive electronic
publication?  Or are there other alternatives?  I would imagine there
are reasons for preferring one system over the other, and I'd like to
know how writers feel about this.

Full disclosure: I represent The Authors Guild and a number of
well-known writers in a lawsuit seeking class action status that was
filed mid-August against some of the largest electronic databases.
  

    
Hot damn. Please to tell us more. This is the suit against Northern
Light and a bunch of other databases, isn't it?

You are absolutely right about the electronic database issue. I'm not
a lawyer so I'm not going to try to get into the details, but you can
find a nice summary of that decision -- Tasini et al. vs. New York
Times et al. -- here:  http://www.nwu.org/tvt/tvthome.htm

As for your question:
> would you prefer
> sell outright your full copyright in a work, or would you prefer an
> enforceable system to ensure payment for successive electronic
> publication

I will happily sell outright my full copyright...for the right price.
I do a lot of corporate writing these days because in exchange for
selling it outright, I get a very, very nice paycheck. I would also
like to see some kind of ASCAP arrangement allowing for payments for
electronic publication (and, in fact, such things are being put
together). 

The issue isn't about who owns what rights. The issue is, should other
people be able to make money off of my work without sharing the
proceeds with me? In my opinion, no.
  

    
In my area of the largely technical press, one of the problems has been that
writers perceive (correctly, in many cases) their work as dating so quickly
that it's not resalable, so they figure giving away all rights costs them
nothing.  I had one editor call us prima donnas for thinking we could resell
our stuff, which didn't help.  A lot of these guys come from computer
backgrounds, not writing backgrounds, and the traditions of the industry are
unknown to them.

In Britain, however, it's not just technical writers that feel this way.
One of the leading national columnists, John diamond, who frequents a forum
I run for UK media (see http://www.fleetstreet.org.uk), has often said he
doesnt see why writers should get more for further use.  He doesn't, he
says, pay  his plumber extra if he decides to use the bathtub for showers as
well as baths.  Diamond does, however, argue that writers should be paid
better -- his belief is we should be paid well once, and not care what
happens nexxt.

As a former musician, I've seen too many instances where people have sold
their copyrights only to discover later that while they live in poverty
someone else is making millions of their work.  So I feel strongly that if
someone is making money out of my work I should get a piece of it.  On the
other hand, I also believe strongly in the importance of free access to
ideas.  (DVDs etc. aren't part of this discussion, but I was watching the
directors' commentary to Twister last night, and he mentioned several times
that he wanted to put in references to the Wizard of Oz and coiuldn't do
several of the ones he wanted to because he couldn't get clearance -- that
to me is wholly wrong.)

The ASJA newsletter recently highlighted how little most writers make.
(Although I got no reply when I emailed the author and pointed out that
several categories of highly paid writers, notably technical writers doing
corporate and PR work and successful books like the Dummies books and other
references -- and some of those people are well paid -- aren't included in
the ASJa's membership.)  I recently asked a magazine for a raise from $1 a
word, which they'd been paying me for a year.  The editor asked if I could
cite another magazine paying me more to bolster his case.  Fortunately, I
could, and I got the raise.

I do think a lot of our problems stem from the fact that there are umpteen
million would-be writers out there and somewhere there is always going to be
hungry enough to undercut the established names.  That said, I think it's
incumbent on us to ask for raises, to object to unfair contracts, and for
the well-established folks to take the lead in doing so.

wg
  

    
I'm a fiction writer, so I'd rather not sell all rights to my work for any
sum of money.

I occasionally write nonfiction, and would consider selling all rights: but
my goodness it would have to be some good money.  If they really think they
can continue to make money on my work, they can cut me in on it.  Otherwise,
why try to buy all the rights?
  

    
I'm not a writer but it seems to me that for a flat fee to work, both
sides need to have a very good idea about how well a piece will sell. 
But if sales are unpredictable, or there are differing opinions, then
royalties make more sense.
  

    


i suppose this is a simplistic view, but:

  * actors get royalty checks from movies and TV shows they did 
    years/decades ago. this is not considered overly demanding.

  * musicians and composers get royalty checks from songs and
    recordings they made or recorded years/decades ago (in a lot
    of cases, at least). this is not considered overly demanding.

  * when writers ask for similar compensation, they are currently
    frequently seen as overly demanding.


there's something wrong with that picture. as a writer, my instinct is to
say: if the publisher wants these rights from you so badly, they
must be worth something! 

as a realist, though, i also think it's sometimes appropriate to sign your
rights away for $1/word. i feel this about the numerous short-shorts and
one-offs i write -- breezy lifestyle or tech pieces for online
publications, short reviews for magazines. 

i also feel fairly compensated
for the online content development work i do, where my words show up in
business plans, assorted client deliverables, and as nomenclature and
content on the initial web site. in these cases, i *am* work-for-hire and
don't mind my rights being treated as such. 

chunkier articles are a different thing. 

of course, that's part of the problem right there... other writers may
consider their breezy 350-word lifestyle front-of-book pieces worth
fighting for, in terms of extra pay or royalties for electronic rights. in
such a circumstance, *my* signing away those rights is an affront to
writers' struggles everywhere. 
  

    
UNIONIZE!!!  TO THE BARRICADES!!  (do not listen to the entreaties of
the Teamsters) 
  

    

yeah! this is why i'm in the NWU! so we can, uh, picket northernlight.com
or something.

seriously, maybe we shouldn't use Napster as an example to people who don't
understand why writers are concerned about digital rights. instead, let's
use something even more inflammatory:

imagine that you were an art photographer, and you took a photograph
     of your wife. in the photo, she was nude.
you hung the photo in a gallery show.

someone else took a photo of your photo of your nude wife;
 maybe this second photographer owned the gallery. maybe not.
 it doesn't really matter, does it?

and then this person posted your photo of your nude wife
on the Internet, and charged people to look at it.

would you not be a little pissed off, and for more than one reason? 

this might be how writers feel when their work is STOLEN outright and 
placed in databases such as that on northernlight.com. 
  

    
I think that Wendy, Martha, and Tiffany all bring up interesting
distinctions between how different categories of writing are perceived
in terms of resale value--by the writers, and presumably by the market
in general.
1) breaking news/dated material
2) longer shelf-life features
3) fiction
4) corporate writing

I think in the last case, business writing/consulting is almost always
viewed as work for hire. No one is going to ask for royalties on that
report they did, no matter how brilliant or well-crafted. So let's
throw that out of the mix.


Writing Worth Fighting For?

I think the first three categories of writing are ones which most
writers would like to retain their electronic rights to. They may not
be willing to fight for those rights, but they would like them.

A couple of other points:
1) Ultimately, I think most writers will benefit modestly from
retaining their electronic rights. They'll see a slight bump up in
income or royalties, nothing spectacular.

2) A few will "hit the jackpot." Something which has had an ordinary
life in print will have some sort of extraordinary life, either in
circulation or revenues, in electronic media.

3) I think we are headed for a series of test legal cases and, just as
important, individual author/publisher showdowns which will eventually
tip the balance of power in favor of the author. This will only
happen, however, if authors organize in some fashion--which can be as
simple as word-of-mouth campaigns about which magazines to write for or
as concrete as a NWU campaign.

Where will revenues come from?
1) sales to individuals. Much as people buy books, they could buy
content-items, the Contentville model, w/ authors getting a cut.

2) sales to sites. If you retain your electronic rights, then you can
sell second serial rights for a book or article to a website. 

3) (indirectly) off-line sales generated by online presence. Yes, it
sounds convoluted, but generating offline properies (esp. films) from
online entities is the hot thing du jour. So your short story becomes a
concept for a flash animation, which then becomes a movie. You're
rich! (Chances: 1:1,000,000, if that.)

Specifics:
#3, fiction, is poorly compensated and has a limited number of outlets
overall. (A great shame, in my opinion.) 

#2, general features: the largest potential market for re-sale of
print material online

#1, dated material: the lowest. Big news outlets do this stuff the
best and everybody else just links to them. The one exception is
international news. Between the high overhead of the news business and
our tendencies to myopia, we don't cover "the world" like we used to.
The big guys are shutting down international bureaus, etc. 

I have not given up the electronic rights to anything I have written
for at least two, maybe three years. I have been consistently told "we
can't do that" or "we can't pay you" and believe me, they can, and they
will. More on that later.

Right now I'm running a site, www.PopandPolitics.com, which is very
small. One way I plan to expand is by seeking out writers who've
retained their electronic rights and paying them for second serial.
That's nonfiction/fiction; books/magazines. 

I've been able to get some great people to write for me for free--and
I could get some MORE great people to write for me for free if I had
the time to bug them. On the one hand, this is good. On the other hand,
it shows that we're completely used to thinking of writing as
something which is a hobby, a side project, a love--not dinner. That's
bad. You can do good writing part time, but it helps to be able to do
it full time at least some of the time. And putting more money in the
hands of writers, in my mind, will produce more serious full-time
writers and better writing all around.
  

    
People also tend to think of writing as a mysterious art, something people
do because they're compelled to do it -- and yet, at the same time, they
think of it as something they could do themselves, and therefore not
particularly valuable.

So why should non-writers care for even a minute about whether or not those
of us who make a living putting words together can continue to make a living
if things keep going the way they're going?
  

    
The one problem in zimby's otherwise admirable post above (I'd write for
popandpolitics) is the second sales to Web sites:  almost every magazine
these days has an online edition and want the articles for it.

I don't actually object to that:  I don't think there are, at the moment,
any content providers who are making money off their Web sites.  What I
want, however, is the right to reuse or resell the material myself as well
after a specified period, and the retention of copyright and moral rights.
The one thing I really do insist on is the right to reuse material in books,
-- as I tell people, I do not ever want to be in the position of having to
ask someone else if I can reuse my own work.

wg
(If anyone wants to know what I do, see http://pelicancrossing.net.  I'm
basically migrating my entire Web site there.)
  

    <scribbled by zimby Sat 16 Sep 00 07:00>
  

    
(sorry, typo)

I agree Wendy. One point worth clarifying is that I think writers
should make their own judgments about the value of their work, and
consider doing different things based on the type of work they produce.

For example:

1) If you're doing a breaking news story, perhaps you do sell the
e-rights outright for essentially nothing--no financial gain, though at
least you acknowledge that fact rather than leaving it unacknowledged.
2) Or, if you're selling an evergreen feature to a publication with an
online edition, maybe you sell the e-rights in perpetuity for a
premium.
3) Or, if you're selling that same feature, you sell the e-rights for
a limited term, say a year, for a lesser fee. Then you could
potentially re-sell those rights (not as batty as it sounds, because I
think that the web is better at aggregating than producing).
  

    
>I don't think there are, at the moment,
 any content providers who are making money off their Web sites.


It's not my problem if a website isn't profitable yet. The reason the
publisher wants the rights is because it thinks the website will become a
source of revenue in the future. And what happens when it does, and I can't
get my share?
  

    

From the Internet, Judith writes:

Let's put aside the question of how much writers should get paid for multiple 
uses, or the fact that book contracts call for additional payments for 
subsidiary rights, like foreign language editions, paperbacks, serialization, 
etc.

The fundamental problem is that $1/word standard for print rights. This 
hasn't changed for 30 years. Doesn't anybody see anything wrong with 
that?--Judith Trotsky
  

    
Hi, Judith!

Absolutely, I see something wrong with that. A buck a word? Hell,
plenty of magazines are trying to get away with less than that, and
they're cutting their editorial hole as well. So instead of making
$1/word for 4,000 words -- a not unreasonable fee in the '70s, and
plenty of opportunity to delve into a subject -- writers now are making
$1/word (if they're lucky) for 1,500 words, which gives them hardly
any room to go in depth but requires every bit as much research. It's
unbelievably disheartening.

To be honest, I'm not entirely sure what to do about it. Do we all
quit writing for magazines that can clearly (based on their ad rates)
afford to pay more than a buck a word? Sure, we can do that...but there
will always be another writer willing to write for peanuts to get a
byline, just as there will always be another writer who won't kick up a
fuss about selling all rights for those peanuts. And readers end up
with cheap crap to read because editors aren't willing to shell out for
the good writers. 

When I started refusing to work for less than what I considered a
decent rate, I ended up having to pass up a lot of magazine work in
favor of corporate writing. So I now find myself in the uncomfortable
position of having to choose between making a crappy living doing
something I enjoy or making a decent living doing something that, for
the most part, has no particular value to me -- and hey, if I wanted to
lack interest in my work, I'd give up freelancing and get a day job! 

It is a source of constant frustration. 
  

    
It's hard for me to think of any way to gain leverage in this situation.
When I was casting about for a career back in the 70s (I still cast about
for one now and then, just to stay in practice) lotsa folks who know I can
write suggested freelancing.  I evaluated the economic situation and decided
it was untenable.  Perhaps an ok career for an extrovert with a thick skin
and great salesmanship skils.  And a trust fund.
  

    
Hmmm. I'm not an extrovert and I definitely don't have a trust fund, but
point taken.

All the same, it still comes back to the same problem: how do we manage to
get paid what we're worth? I've had discussions with other writers who say
the answer is to publicize the situation to get public support.
  

    
One thing that always gets me is that the prestige price for stories in the
top magazines has stayed about the same since the _1920s_: $1 a word or so.
That's what you'd get back then in the Saturday Evening Post, that's what, I
believe, you'll get today in the New Yorker.

If you sell a piece of fiction to Playboy for big huge money, you might get
$5000, which sounds like a lot, and isn't bad; but it's a story you spent a
month writing, and you don't get a sale that big very often so it has to
last you.

Part of the problem: in the early decades of the last century, magazines
were a huge part of popular entertainment.  They've been usurped by other
media, particularly television.  People don't read magazine serials for
their prime entertainment now.

Still, wouldn't it be nice for people to be paid what they're worth, and to
even retain their moral rights to what they've made....
  

    
Bearing in mind that British ffreelances make about 1/3 per word than US
ones unless they're writing for the Sunday magazines, my solution to the
problem Fawn poses was to specialize in an area that at the time I chose it
was relatively unknown, ie, the Internet.  If everything I do feeds into
something else I do, it becomes economical to write for less (assuming you
can keep up a steady delivery pace).  Also contributing to this, of course,
is lower administrative overhead in terms of time -- UK editors generally do
not make you jump through the extensive hoops that US ones do, either in
getting the commision or in servicing it afterwards (fact=checking,
supplying sources, etc.)  I am supremely uninterested in corporate work, it
turns out, so I do almost none.  And then every so often I take on a piece
in a field I know relatively little abou5t in order to learn about it.

wg
  

    

One of the things I was hoping we could talk about here is the
increasingly frequent issue of writers discovering their works on the Web,
without permission, being offered for sale or even for free.

Neil Gaiman just posted:

Topic  73 [inkwell.vue]:  Neil Gaiman - SANDMAN:THE DREAM HUNTERS
#556 of 558: Neil Gaiman (neilgaiman)      Sun Sep 17 '00 (05:51)     6
lines

 Does anyone know anything about
 http://www.wsmf.org/texts/emonks/annex/Literature/
 They have Don't Panic posted there without permission, along with an
 enormous quantity of stuff by, among other people, Douglas Adams,
 Harlan Ellison... it all appears to be copyright material. My blood is
 boiling, gently.

It was this very issue, albeit about Contentville, that make me want to
start this discussion in the first place...
  

    
(I should append the $1/word top rate post above to note that when a fiction
writer makes ten cents a word she's very, very, very happy.)
  

    

That's *made* me want, in my post #21 above.  Not "make." 
  

    
I have never heard of that site. I'm going to toss it out among the writerly
types I know and see if anyone's heard about it.

In the meantime, it is not even remotely uncommon for publishers to
simply...er...ASSUME electronic rights and pop stuff into databases without
having purchased the right to do so. In fact, there are and have been a few
lawsuits about just such activity in recent years.

As for individuals, I just assume they don't realize they aren't allowed to
do such things, and they usually cooperate if I send them a stern note
saying "Hey, don't do that!"
  

    

http://www.wsmf.org/texts/emonks has "Arbitrary Placement of Walls" too.

All kinds of stuff there.  Might be interesting to invite the site's
originator to state his purpose.  Perhaps by email.