CONTRACT TRENDS POSE ADDITIONAL CHALLENGES FOR FREELANCE WRITERS

by Steve Wagner

Congress passes laws.

Courts interpret and enforce laws.

Corporations seek loopholes to circumvent laws.

The three branches of American government are working at peak efficiency, or so it seems in the continuing disappointments of New York Times vs. Tasini.

In June, the U.S. Supreme Court resolved the high-profile lawsuit in favor of [Jonathan] Tasini and leagues of freelance writers. The decision supported the intent of long-established copyright laws. Essentially, publishers were told to pay up for past infringements that occurred when printed work was distributed in electronic mediums without permission from authors. The ruling bestowed more official, federal advocacy on the basic tenet of additional pay for additional rights. For OWAA [Outdoor Writers Association of America] and other celebrators, however, the victory soured faster than you can say "work-for-hire contracts."

In the few short months since the decision, publishers across the country have adopted agreements that demand all rights, in all media, for all eternity, with little or no extra compensation for freelancers. Tenets be damned. It's a perfectly legal loophole designed to avoid future lawsuits by coercing blanket permission right from the outset: "Dear Writer: You have two options. For one low price you can sell us all your work to use as we wish, even in media outlets yet to be invented, or, you can take a hike."

Big-name authors may have the bargaining power to negotiate extra pay as the high court suggested. But more and more grassroots contributors are relinquishing all copyright as well as their notes, interview tapes, undeveloped film-even their own name and likeness-for corporate use.

They own you like dairy cows.

Now and then, though, even Holsteins get to sleep in the barn. However, communicators are being locked out by new-generation contracts that oddly blend opposing concepts. The agreements establish typical work-for-hire relationships where employee products become the exclusive property of the employer. Yet they sever all other perceptions that writers might assume about their employee status. Publishers clearly state that contributors aren't entitled to sick pay, pension, insurance, profit sharing, office supplies, or business cards. Even the benefits of titles have been eliminated; some veteran at-large editors are now being told to identify themselves only as "contracted writers."

Some loopholes indeed resemble nooses. One rumored contract insists that writers sign away their right to defend themselves. If a published article erupts into claims of plagiarism, defamation, or invasion of privacy, for example, the publisher may settle the dispute without consulting the writer, who is then held liable for the legal costs.

Of course, no document is legal or binding until both parties have signed. Even if negotiation isn't an option, an offended writer can always opt for that hike.

The problem is-and publishers are banking on this-that if you walk away, you could be easily replaced by another from the vast herd of milkers. In the end, opportunistic scabs won't care if the post-Tasini environment is a predatory corporate game, contradictory to the spirit of copyright law and potentially catastrophic to communications professions.

A Slippery Slope

Media conglomerate AOL/Time-Warner, publisher of Field & Stream, Outdoor Life, and many other publications, in July unveiled its new contributor contracts. The documents followed work-for-hire models. Free-lancers from two of the corporation's newly acquired titles, Ski and Skiing, were the first to protest.

A coalition of prominent snowsports writers approached editors, requesting a return to pre-Tasini policies of purchasing only first North American rights. Under old agreements, ownership of work remained with authors, who were free to profit by selling second rights, electronic rights, reprint rights, etc. All that changed with the new contracts. Now a writer's work is wholly owned by the publisher. Only AOL/Time-Warner may sell (or give) the work to other users-magazines, Web sites, books publishers, even movie producers-with no royalties for the original creator.

However, the middle-management editors were unable to facilitate any return to earlier procedures. The only concession they were empowered to make was granting writers "non-exclusive secondary rights" following a three-month, post-publication embargo. It was a small step in the right direction but far from an acceptable solution.

"The Ski and Skiing writers have not signed (the new contracts) and are taking this to the next step. We are not as easily replaceable as the magazines might wish," said skiing scribe Claire Walter in a telephone call to OWAA headquarters. She believes readers and advertisers will notice drop-offs in editorial quality and will quickly boycott offending titles. In late August the coalition asked for a September meeting with publishing executives. Walter said the writers would not level ultimatums or threats, but explanations of how the new contracts will hurt everyone. At this writing, no meeting is scheduled.

"We urge OWAA writers not to sign, either. If we don't hang together we will all hang separately," said Walter.

Hanging together-on corporate blacklists, perhaps-is exactly what some outdoor writers fear. Several OWAA members indicated they will sign work-for-hire contracts and speculated that organized interference from OWAA could get all its members blackballed. Besides, they said, some of the big titles are paying $1 per word for all rights, which is good pay in the outdoor market.

But not all OWAAers are as pleased. Some are urging the association to establish minimum rates for our industry, shame low-payers by listing them in Outdoors Unlimited, or rally supporting members against certain publications where they advertise. Others insist such actions would be, at best, powerless in a non-union, free enterprise system. At worst, they could backfire into antitrust lawsuits against OWAA.

Each time the association's board of directors addresses these topics, it ultimately concludes that buying and selling are decisions best conducted on individual levels, while the most beneficial group functions are honing member skills to irreplaceable levels, relaying current market trends, and encouraging smarter contract negotiation.

Nevertheless, OWAA is eyeing the progress of the skiing writers, ready to jump if a chink is found in corporate armor.

Because They Can

Recently an OWAA member was negotiating photography rates with a magazine editor. After a few exchanges, with each side holding steadfast to figures $50 apart, the OWAAer wondered exactly who would benefit most by winning this quibble. After all, both were basically trying to make income exceed expenses.

"Your magazine is a big operation. What percent of your budget is for purchasing editorial material?" asked the photographer. Less than 10 percent, answered the editor.

"Then why, with so many bigger-dollar areas from which to cut costs, are you robbing me of $50?"

Silence followed.

And then the editor replied: "Because I can."

Others can too, and do. An informal poll of several outdoor magazines show editorial expenses generally amount to small potatoes in overall publication expenses, from five to 20 percent. Certainly, content would seem to be the worst place for publishers to skimp. Yet there is no doubt that if photo and article payments are indeed first on the chopping block, as it sometimes seems, it's because freelancers have historically permitted it.

In 2000, the National Writers Union (NWU) launched an industry-wide study of three essential questions. First, have freelance pay rates increased, stagnated, or decreased since the 1960s? Second, what do other college-educated professionals earn? And, third, how much can publishers afford to pay writers?

The news is not good.

NWU found that in real dollars, freelance rates have declined more than 50 percent since the 1960s. For example, in 1966 Cosmopolitan paid 60 cents per word. In 1998 it paid $1. In the meantime, the buying power of the dollar fell by a factor of five-so Cosmopolitan's real rates have fallen by a factor of three! Good Housekeeping's rate, $1 per word, was unchanged over the same time span, translating to an 80 percent decline in real pay. In terms of 2001 dollars, Good Housekeeping was paying $5 per word in 1966.

Because freelancers spend so much time writing queries, researching and revising articles for editors, most full-timers produce just 3,000 to 4,000 payable words per month, according to NWU. At $1 per word, then, a writer can expect a gross annual "salary" of $36,000 to $48,000. After expenses, insurance and other benefits are deducted, the real income is $30,000 to $40,000. Meanwhile, the median income for full-time, college-educated workers in the U.S. is about $50,000 plus benefits. In writer terms, this equates to $1.25 to $1.60 per word.

NWU analyses show that major magazines earn $125 per word (this accounts for advertising income only, not newsstand or subscription revenues). At a freelance rate of $1 per word, these publications are paying writers less than one percent of gross income.

"If they paid 15 percent of grossÉthe way book publishers manage to do and still turn handsome profits, they would be paying at least $19 per word," the report claims.

NWU points out that its study was an evaluation only of rates, not rights. Thus, these statistics don't account for the fact that many publishers, with their new work-for-hire contracts, now are getting even more for their money while freelancers can no longer sell additional rights to supplement their ground-losing incomes.

What's Next?

The Tasini decision and its real-world impacts were predicted by some observers. Still, it was a principle to be staunchly defended; that's why the OWAA board of directors in December 2000 voted to participate in the lawsuit, partnering with NWU and many other professional communicators organizations. This principle is being challenged again in another case quickly advancing to the U.S. Supreme Court. And, again, OWAA will be there as a friend of the court.

The new case, Greenberg vs. National Geographic, will decide photographers' rights as Tasini did writers' rights. The parallels are precise; the plaintiff sued after the publisher used photos without permission in electronic mediums.

An interesting sidebar is that National Geographic is represented by Ken Starr, the lead counsel in the 1998-99 impeachment hearings of President Clinton.

It's reasonable to expect media corporations to use Starr's arguments, as well as the court's final decision, as slipknots for more loopholes. Photographers, somewhat spared from the AOL/Time-Warner shift to work-for-hire contracts, may see more attempts to grab all rights. And freelancers who submit photos along with their manuscripts may lose even more potential income.

What else might be predicted?

• Free-lancers spending more time rewriting articles, changing them just enough to be sold as fresh material to different publishers.
• Rising success of part-timers. Writers whose primary income is derived elsewhere aren't burdened with producing quantity and may be better positioned to produce quality, increasing their bargaining power.
• Writers working harder to dig out unique stories and personality features. Every outdoor publisher will have in its archives, for example, annually repeating evergreens on tree-stand safety and tying pale morning duns. But standout original material deserves sspecial treatment, even if a writer has to withhold a piece until a new contract period.
• Legal action over an article sold by publishers for big dollars, perhaps as a motion picture script, with no crumbs for the writer. The movie The Perfect Storm was originally a magazine piece. Thankfully, it wasn't written under a work-for-hire contract and the author profited. But some other writer, someday, will be severely and unfairly stiffed. Such a court challenge could help swing the pendulum back in favor of writers.

Until then, OWAA Legal Counsel Bill Powell predicts that lawsuits and court decisions won't usher any real change for freelancers as a group, since big media corporations are simply too slick at circumventing laws. Reference Tasini. Powell suggests that meaningful change may be attainable only by restarting the processes of modern American government. In other words, perhaps it's time for professional communicators to unite and approach the first branch-Congress-to seek an update of federal copyright statutes intended to protect and enhance this country's creative genius.

The OWAA board of directors will discuss this issue at its winter meeting in Columbia, MO.

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Steve Wagner is executive director of the Outdoor Writers Association of America (www.owaa.org).

"Predatory Corporate Games," November 2001. Copyright: Outdoor Writers Association of America, 2001. Reprinted with permission.