by Joel N. Shurkin
You would think the last publication in America to try to screw writers would be The New York Times. No. The great, gray lady of Times Square can be just as crass and greedy as the slut up the street.
The dispute, being fought by press release, letter and writers' computer networks (including NASW On-line) turns on the announcement by the Times that from now on free-lancers contributing to the paper will have to sign work-made-for-hire contracts, which gives the Times all rights to stories it publishes without paying a dime extra to the writers. The only exceptions are the op-ed page and the Sunday magazine, and those exceptions will be limited.
The Times' decision, if unchanged, completely alters the relationship writers have with publishers, a relationship that goes back to Charles Dickens and Mark Twain. It is part of a widespread effort by publishers all over the world to alter that relationship and the Times is the catalyst for the current outrage because it is the Times and most of us expect better from that publication.
The core issue is electronic rights.
What's the problem? Until now, we writers did not actually sell stories. We sold the right to publish our stories but under the law we retained the copyright and could resell the story elsewhere, the hoary practice known as recycling. Traditionally, we sold first North American serial rights. Every time the story was reprinted-even on the Internet-we were supposed to be paid.
Under the Times' rule-and the practice now followed by a number of magazine publishers-that changes. By signing a work-made-for-hire contract you are selling the story to the Times, not just the rights. The Times would own the story and, most importantly, can reprint it when and where it chooses-especially electronically-without your permission or further compensation.
The rationale is the new information age and electronic rights, which the publishers genuinely do not understand. The publishers all insist that things are changing so rapidly it is impossible to predict where their next markets will be, and as a Times memorandum put it, broad ownership of the right to reuse articles "will give us the flexibility later to create new digital publications that we cannot even imagine now. Such nimbleness is a rapidly changing publishing and information environment," the Times continued, "will be crucial if the Times is to be a leader in electronic journalism." This "nimbleness" is going to be exercised on our backs.
Book publishers feel the same way, incidentally. Several, led by S.I. Newhouse' Random House up the street, insist that all writers sign over all electronic rights, including rights for CD-ROMs and Internet pages without compensation or discussion or no deal. These are not work-made-for-hire contracts, just additional clauses in the standard book contract. One publisher actually put in a clause giving it rights for the entire universe, not just this galaxy.
The situation at the Times case is peculiar for another reason: They probably don't want to get the contracts challenged in court.
The term "work made for hire" is a specific term used in the 1976 Copyright Act. Generally, work made for hire describes the work of employees. All the Times' staff writers work for hire, which means the Times owns the stories. The Times also pays salaries and benefits to their employees and withholds and pays the appropriate taxes. With work-made-for-hire contracts, you function as an employee of the Times, but they don't have to pay you salaries or benefits. Neat, huh?
The tax folks several years ago took a look at work-made-for-hire contracts and got very unhappy. Here was a device for evading tax laws, using people as if they were employees but not withholding income or paying other taxes on them. They tightened the rules.
According to The Writer's Legal Companion by Brad Bunnin and Peter Beren [thank you Stephen Hart], there are three criteria for a work to be considered made for hire.
There must be a contract, signed by both parties, that specifies that the work is made for hire. No problem here; the Times is requiring the writers sign such a contract or no work.
"To be a work made for hire, the commissioned work must be specially ordered or commissioned for use as a contribution to a collective work." This would exclude books by single authors, incidentally, but, it could be argued, applies to a newspaper which is, after all, a collective effort. But:
The work must be at the "instance" and "expense" of the employer. They have to generate the idea. If you send in a query letter and the Times buys the story from the query and/or they don't pick up the expenses, it can't be work made for hire no matter what the contract says.
A number of publications try to get around all that by adding clauses that say that if the work is deemed not work made for hire, then you agree to assign all rights anyway, which could be of considerable interest to the Internal Revenue Service.
If the Times does use your story without fulfilling those conditions and reprints it, you can sue them for copyright breach, a law suit the Times would probably love to avoid.
What's wrong with their argument? Isn't the publishing world changing and don't publishers have a right to protect themselves against the changes?
The main reason is that the premise is false. The technology is changing rapidly but nothing is likely to occur that would justify this alteration in the basic writer-publisher relationship.
Keeping track of where stories pop up is part of what publishers do for a living. Most publications now pay writers extra when their work is republished (I just cashed a check for an article I wrote for Earth and which Earth then resold). Electronics makes it easier, not harder.
Technology changed the music business over the years and yet music publishers and record companies have no trouble paying song writers and musicians for record sales and plays on the radio, nor has it hampered their participation in the electronic revolution. They don't even whine about it. Why should word publishers be incapable of doing the same?
If they sell CD-ROMs they can pay the writer a percentage just as if they were selling a book or a record. If they put a writer's work on the World Wide Web they can keep track of rights and pay accordingly. Several publications do that already.
With the advent of the Writers' Registry, the publishers have lost their only excuse.
Greed.
Rebellion, I'm happy to say, has broken out all over. Our hero of the day is Julia Child. Child was advised of the new world order by her usual book publisher, Random House, and rather than give in, the dear lady walked to another publisher who happily struck a different deal. Child also helped instigate a rebellion against the Times, talking her friend, cooking columnist Jacques Pepin into refusing to sign the contract. He quit The Times. Hearty burp to them both!
They are not alone. Every major writers' group, led by the American Society of Journalists & Authors, the Authors Guild and the National Writers Union, have protested to the Times. Individual writers, including many who have contributed to the newspaper in the past, including Ken Follett, Erica Jong, Garrison Keillor, J. Anthony Lukas, Alvin Toffler, Heidi Toffler, Norman Mailer, and Gore Vidal.(they actually agreed on something), Isabel Allende, Susan Cheever, Gael Greene, David Halberstam, Jessica Mitford, Garry Trudeau, Kurt Vonnegut, and Alice Walker, have also sent letters and e-mail protests to Times publisher Arthur Ochs Sulzberger and executive editor Joseph Lelyveld.
NASW also joined in the protest with a letter from president Laurie Garrett, as have other groups such as the travel writers association. The Times' travel section as well as its Arts & Entertainment, are almost all free lance. (ScienceTimes uses very little free-lance work.)
Those who have written to the newspaper get a form response signed by Kevin McKenna, the editorial director for electronic media:
"Thank you for writing to the New York Times to share your thoughts about our recent decision concerning electronic rights for free-lance writers. We appreciate hearing your views and have recently met to discuss our policy again. We feel comfortable with it. We believe that as we enter the still uncharted waters of electronic media, this is the right approach for us to take. Sincerely."
Nuts.
The only thing we can do about it as writers is refuse to sign contracts like that. I know, having your byline in the New York Times is a nice thing for your resume and will please mom. We all need the money. But standing together works. The Los Angeles Times tried a similar stunt earlier this year but after several writers humiliated a number of Times editors on the telephone, the newspaper backed off.
It can work in this situation as well.
It's time The New York Times acted like The New York Times.