One way publishers can increase their profits is to obtain as many rights to your work as possible, at the lowest cost possible. When writers, especially new freelancers, combine the fear of losing work and pay with their hunger for a first clip or penetration into a new market, they open the door for a publisher’s profit interests to govern a contract’s content.
In this way, freelance-writer agreements that include work-for-hire and all-rights provisions can obliterate your future income streams. Boost your confidence to negotiate on your own behalf by understanding these terms and knowing your options.
Transfer of copyright. Erik Sherman, freelance writer, photographer and chairman of the American Society of Journalists and Author’s Contract Committee, defines copyright as “the ownership of a certain arrangement of words that results in a particular expression of an idea.” All the rights that you may choose to transfer and hopefully get paid for spring from copyright. Once you transfer copyright, you’ve surrendered control over the uses of your work.
Work made for hire. Work-made-for-hire agreements (WMFH) are more restrictive than transfer of copyright alone, said Sherman. “Under such an agreement, not only do you transfer the copyright, but the publisher legally becomes the author of the piece. Barring contractual language to the contrary, the publisher does not even have the obligation of offering a byline or even a review of an article that can be radically changed. After all, the publisher is the author and can do as it wishes.”
All rights. Dian Killian, formerly senior organizer for the National Writers Union, distinguishes between two types of all-rights provisions. In an exclusive all-rights contract, you retain the copyright and remain the owner of the work, but you relinquish all rights to that work. You can’t sell it to someone else, authorize its use in another format or collect payment should it be used as the basis for a play, movie, video game or other product. Only the entity to which you transferred all rights can make and benefit from those deals.
A nonexclusive all-rights agreement allows both you and the publisher to exploit your work, sometimes after a certain period of time. However, publishers often can market your work better than you and perhaps reduce your sales opportunities. For example, if a print publisher archives your work online, you’ll be less able to sell that work to an Internet publication.
“Star Wars” contracts. When a contract gives the publisher the right to use your work “…in any and all media that has ever been or will ever be invented throughout the universe,” Killian says it’s a “Star Wars” contract. Publishers don’t want to find out in the future that they’re liable to writers for newly invented uses of material. They include the “Star Wars” language with the hope that, once the new medium becomes available, they won’t need to ask permission or pay more money for the new use.
Inappropriate use of work made for hire. Copyright law spells out what is and is not a work made for hire. This arrangement functions especially well for technical writers because their work is specific, unlikely to have resale markets and appropriately compensated. On the other hand, freelance journalists make money by recycling their work. Because contracts that contain WMFH language transfer all rights, copyright and authorship to the publisher, they leave no moneymaking venues for the writer.
Your Options. Professional associations such as American Society of Journalists and Authors and NWU oppose the use and existence of WMFH and all-rights provisions in freelance agreements and suggest you:
* Negotiate for more pay, the sale of fewer rights, or both.
* Consult with writers who’ve written for the publisher and gather market information.
* Ask for a First North American Serial Rights contract because many publishers have multiple contracts.
* Question publishers about what they do with articles, then tell them why you want to retain certain rights.
* Request nonexclusive rights so that you and the publisher can market the work.
* Get contract advice from the NWU, which provides contract advisers for its members, or from ASJA, which will review contracts for members and for nonmembers on a limited basis.
If a publisher makes changes for you, you’ve helped yourself and the industry. But when changes aren’t forthcoming, you have a tough decision to make. Sherman summarizes the dilemma with pragmatism.
“While holding fast is good for the writing community — and has, even if you don’t realize it, influenced a number of major publishers to soften their demands — the idea is not to put yourself in a position where you can no longer live. If the wolf is at the door, and you cannot make ends meet this month without an all-rights contract, take care of yourself and your family, do the work, get paid, and live to fight smarter and harder next time.”
Jill Miller Zimon is a columnist and contributing editor for Cleveland Family magazine and writes about education reform for the KnowledgeWorks Foundation. Her op-eds, essays and features have appeared in The Plain Dealer, The Writer and Writer’s Digest.
