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| Volume 49, Number 1, Spring 2000 |
by Joel N. Shurkin
For most of the 20th century, independent writers followed a very simple business model: we wrote the stories and then we rented them out. We did not sell stories, we sold licenses. They were our property. We owned the stories and rented their use.
Contracts were simple: as copyright holders, we sold First North American Rights (FNA) to magazines, which meant we sold to the publication a license to publish the story first in the U.S. and Canada, and that's all. We could sell it again later, or we could sell it elsewhere. They were our property, not theirs. Same with books. Publishers got limited rights to print them and then when they were done, the books went out of print and we got the rights back because the copyright was our property. Ah. The Good Old Days.
Then came greed and the Internet (which is almost redundant)
and the rise of corporate media ownership.
What is happening now is that publishers, particularly but not
exclusively Internet publishers, are demanding we give up our
property rights. They either are demanding we turn over the copyright
or we sign all-rights contracts that leaves us with an empty shell
of ownership.
In some cases, they will negotiate the matter if we make a
stink. In many cases it is "non-negotiable."
This is serious stuff, gang. If they were paying higher fees for
all those additional rights we could grin and bear it, but the
price they are paying for magazine stories (an industry standard
$1 a word) has not really budged in almost 30 years. So now they
want additional rights to our work and in most cases are not willing
to pay for them.
Have an analogy: we have been renting a car from Hertz for $89 a day. We like the car. We go into the Hertz office and tell them we are going to buy the car for the same price, $89. What would Hertz do? When they stop laughing they will tell us that we can buy the car from Hertz but we have to go to a different part of the business and pay a different-and much higher price.
If that sounds absurd, think of publishers who once bought FNA rights and are now demanding-for the same fee-rights for "all media in the known universe"-and I'm not making that up.
One reason this is serious business is that there is a long history involved.
The first copyright law was passed in England in 1710, the
Statute of Anne. Mostly it was designed to protect publishers,
not writers, but had the effect of limiting monopolies by limiting
the length of those rights granted publishers.
That changed though the years to granting specific protection
to the people who created the work. Less than 100 years after
the Statute of Anne, the U.S. Constitution could state: "The
Congress shall have power . . .to promote the progress of science
and useful arts . . . by securing for limited times to authors
and inventors the exclusive rights to their respective writings
and discoveries." In 1790, at the request of George Washington
no less, Congress passed the first American copyright act. It's
been revised in 1831, 1870, 1909, and 1976.
England passed similar laws but there were no international agreements.
In 1878, W.S. Gilbert and Arthur Sullivan found themselves with a major hit on their hands, the operetta HMS Pinafore. A New York producer asked them to bring a version there. They arrived to find more than a dozen pirated productions in New York for which they were not making a dime. They immediately produced a not-ready-for-prime-time version of their next show, Pirates of Penzance, to obtain American rights before returning to London.
They had to go to great lengths to protect themselves even back in London. They held a special performance of Pirates at the Bijou Theater in Paignton, put a sign up in the lobby and allowed one gentleman to pay a guinea to come in to see the show. In that way they established the copyright.
Mark Twain and Edgar Allen Poe were among the American writers who fought to protect writers' copyrights. Poe never got paid a penny for his pirated work in Britain, where he was extremely popular. Maybe if he made what he was entitled to he would have had a less dire fate. Dickens worked himself to death overcoming the losses he suffered at the hands of copyright pirates. (He had a large family, a wife, and a mistress named Ellen.)
Eight years after the Pinafore fiasco, and with Gilbert & Sullivan and Twain and other writers fighting the good fight, most western nations signed the Berne Convention making copyright international. (The US is a signatory but does not accept all the clauses.)
There is a century and a half of court cases upholding our property rights over our stories, and Congress has regularly enhanced those rights. Now it's coming undone.
In part, the change is because large media giants are in control of many of our markets and they tend to operate under a different business plan than did the companies they brought out. Additionally, the Internet has become a major revolution in life in general, our work in particular.
Once, writing and publishing was the realm of ladies and gentlemen. Now it's being run by people with stock options.
At a publishing conference at Stanford a few years ago, a lawyer advised all the would-be Web publishers to secure all the rights to everything they published. The theory is that you never know how valuable the content will be and why should you share it with a writer?
At a NASW professional seminar in February, two experts gave a different view to writers.
Kay Murray, chief legal counsel for the Authors Guild warned (in absentia) that the new technology was turning the book-publishing industry on its head. More books are being published electronically in gadgets such as Rocket e-Book (a "dedicated electronic reader"-as opposed to one easily distracted, I suppose). Benign toys such as the Palm Pilot now can hold full texts, and many books are available downloaded into our PCs. Steven King just published a book entirely on the World Wide Web.
Even books now out of print can be distributed this way.
Murray pointed out that the costs to publishers of storing and distributing books electronically is miniscule compared to killing trees, printing on the paper, binding the books, shipping them off to distributors in trucks and then stores, and then paying for returns.
Why shouldn't writers share in the reduced costs and the profits? One way to do that is not to give away our rights or copyright without putting limits on how they can be used and demand fair compensation, she said.
Out-of-print clauses in our book contracts also need to be reevaluated because the rights don't revert to us until the book is out of print, and it's the publishers who often tell us when that happens-or not. With electronic printing, some publishers are claiming the books never go out of print if they are still on the Internet. We would never get the rights back.
Sallie Randolph, a copyright lawyer and member of the American Society of Journalists and Authors made the same point about magazines and the Web. The law was set up to protect us and the only way we can stay protected is not to give those rights away.
Registering our work regularly with the US Copyright Office (www.lcweb.loc.gov/copyright) on a regular basis helps, Randolph says. Many writers do batch registration several times a year of what they have produced during that period. All the forms are on the office's Web site and can be downloaded and shipped back. Thirty dollars and a copy of the work will do it.
Some things to remember:
What do you do when you are confronted with the immortal words: "Our contracts are not negotiable"?
First, remember and repeat to yourself often the following words-the first words spoken by every professor on the first day of the first course in contract law in every law school in America: "A contract is a negotiable instrument." The lawyers who wrote the contract they won't budge on were in those classes too. In any other business but ours the very notion of a non-negotiable contract is a contradiction in terms usually met with gales of laughter. In most cases the other side walks.
Second, people with non-negotiable contracts are not on your side.
Do you really want the ghosts of Edgar Allen Poe and Charles Dickens clanking through your house with the spirits of writers past? I thought not.
Rent, don't sell.
Joel Shurkin is on the public affairs staff of the Johns
Hopkins Medical Institutions and a member of the NASW Board.