11 February 1989
13,500 words

Strategies for Negotiating Freelance Contracts--Back to Copyright Basics

Paul Zuckerman, medical writer and artist

American Medical Writers Association
HSF Chinese Restaurant, 578 Second Ave., Manhattan
11 February 1989

Zuckerman: I originally trained as a medical artist. Then my first job was at Rockwell Park Institute in Buffalo, which was a big medical research institute, and I came there expecting to be a medical artist, and of course one of the first things they had me do was produce film and booklets, and videotapes, and scientific exhibits and whatnot, and I found that I also was doing the writing for these things, so that's what really launched me into a writing career.

And I became a freelancer soon after I started that job, working for New York State, because it's not very profitable.

What I do now is I produce produce booklets for the pharmaceutical companies, those are my primary client, and I like to combine artwork with copywriting, and my other specialty is scientific exhibits.

This one's on Danazol, and here again what I do is I like to combine a lot of graphics with copy at scientific exhibits, and not overload an exhibit with lots of copy. Believe it or not this is on Vick's Vaporub. The Vick company decided they wanted to do something special with it. And here I worked with a medical writer at ICI Pharmaceuticals. This part of the exhibit is mine and that part is the medical writer's.

Getting into the subject that I came to talk about, copyright law and contract law.

Copyright Law of 1978

Prior to January 1, 1978 when the new copyright law came into effect I don't think I ever signed a contract. All the agreements that I ever made with my clients were a handshake and a martini and that sort of thing.

Then on January 1, 1978 while I was working on a project for a publisher I got a contract in the mail and it said across the top, "Master Agreement." It said that in order for the publisher to retain the rights that they've always had in the past all I had to do was sign this agreement which gave all rights to all the work that I did for the rest of my working life to the publisher, and it had a lot of words and terms that I never heard of. So I showed it to a lawayer, and he said, "That's all copyright lingo."

I didn't sign the agreement of course, and as you might expect I lost the contract. So that was my introduction to copyright law. So I decided to learn a little bit about it and I also changed my dissertation subject in the middle of the dissertation from a regular clinical type study to copyright law. So I've gotten pretty deeply into the subject.

This is really a four-segment talk.

[1.] First of all what I want to talk about is why copyright is important, and what rights a writer really has in copyright. Everything that we do in the field of literary and artistic work is controlled by federal regulation through the copyright laws.

[2.] The second one is what are the kinds of problems that are [?].

[3.] And most importantly the last thing I'll talk about today is how to negotiate around the copyright impasse, and how to actually negotiate a contract.

I'd appreciate if you'd save your questions for the end because I discovered after I rehearsed this a couple of times that I repeat myself so many times that it's going to sink in eventually.

Purpose of Copyright Law

Anyway, the purpose of the copyright law is to stimulate creativity of American authors and artisans and to create this body of knowledge that is forever increasing in American life. To provide for the new technology, such as computers, protect the exclusivity for a limited time. The whole idea of having copyright laws for the person who is the creator to bear the fruits of their labor for a certain amount of time, and after that it's supposed to go into the public domain and into the body of knowledge. And another objective was to create a fair and equitable distribution of rights between writers and publishers, for example.

The classic protection you expect from copyright is from plagarism, of course. Now this young lady, Nancy Holt, designed this gazebo for the presidential park in Washington, D.C. The wife of the governor of Indiana liked it so much she thought she'd like to have one just like it in front of the executive mansion or someplace in Indiana. Well, when she got the price from Nancy she decided that she was going to do it on her own. Well, she hired a designer, who naturally, as you can see, copied it. She sued for infringement. They settled out of court. But that's one of the classic reasons that our cases come before the courts.

This one, just January 16, 1989, the Supreme Court agreed to hear a case which is the first case on ownership rights under the new copyright laws. The question of the creator in this case was a sculptor who did a work for a patron. There was no contact, no agreement of any kind, and afterwards they discovered this had some retail value. So then there was a fight over who owned it. And the Supreme Court has to decide that issue.

History of Copyright Laws

Historically our copyright laws follow English laws, and follow the statute of Ann, which was written in 1710, and the whole objective of those original copyright laws was to protect the interests of writers. And that follows with the first copyright law in 1790, which came about just about the same time, soon after the Constitution was written.

And then a new copyright law was written in 1909, and there was a big shift away from protecting the rights of individual writers and other kinds of creators, to protecting the rights of publishing companies.

In this case it was a nice encyclopedia publisher who was very concerned about ownership rights to the work that they leased out to the freelance writer.

Defining Work Made For Hire

In that copyright law of 1909, for the first time they mentioned the term work for hire, but they didn't define it, they just said that an author in the case of a work made for hire is the owner of the work.

So it fell to the courts over a 7-year period to define what a work made for hire is. Who works for hire, and what that work was. And the situation just progressively became more worse for writers, and other creators, as you might expect.

Then under the new law of 1976, they actually define what a work made for hire (WMFH) is, who is a worker for hire. And they tried to divide the rights equally between the publisher and the writer.

As this problem evolved, you can see that the constitution originally called for copyright laws. The objective was to promote science and the useful arts, and the society of knowledge.

Conflicting Interests of Parties

And here in 1988, 1989, as these cases come before the courts, we find all these groups of people who feel that they're really defending, fulfilling the original mandate. We have the judiciary and the Congress with their different opinions, and then we have the publisher and we have creators of all kinds, and each one feels confident that their objective really fulfills the constitutional mandate better than anybody else's.

The big problem of course is that under all these laws, none of the copyright laws has defined what an author is. And as you might expect, a publisher who comes up with an idea for a work and uses their own employees, or a freelancer, feels that they're the author. And a freelancer, naturally assumes when they create a work for someone, that they're the author. And this is a problem that has plagued this whole situation from the very beginning.

So on January 1, 1978, this new copyright law was written, and for the first time, ownership rights were vested in the creator. The Congress thought that they were broadening and setting [?] straight the creators. And section 201(a), Ownership Rights, provides that kind of protection.

There are a few exceptions. It's sort of like, when you buy an airline ticket, and if they tell you that the fare to Miami is only $69 one way, but then they always say, you know, there are certain restrictions? Well, that's what we discovered with this. So let's briefly review this.

Under the old law of 1909, the publisher was the owner of the work, and if they wanted to, they could always assign any kind of rights or claims back to the creator. But the publisher was the initial owner and the final.

In the new copyright law, which took effect in 1978, the situation was completely reversed. Initial ownership rights were vested in the creator, and the creator was the initial owner and the final owner, unless they sold the rights to a publisher or somebody else, and unless it's a work made for hire.

Bundle of Rights

Well, what are these rights that we're talking about? Well this essentially is what copyright law is made up of.

Statutory rights is [?] a bundle of rights, and it includes the right to reproduce it, to make multiple copies of it, the right to make a derivative work of it, for example, if it's a literary work, tie right to change it into a film, or even change the work, make revisions of it, to distribute copies by selling, leasing or lending, to perform it if it's a theatrical work, to display it if it's an artistic work.

And these rights became referrable as a bundle or individually. But this potentially is what copyright consists of. Copyright is not just simply the word copyright per se, it's a bundle of rights.

Often, associated with it, are selling rights. Now the statutory rights that you just saw say that the copyright owner has the right to sell it, but included in selling rights, which are not written in the law, are these different ways of getting individual payment for the work that you do.

First you get the initial fee, which you negotiate with your client, then the possibility of royalties, based on sales, a reuse fee if they use your work again for some other purpose, a bonus based on sale of the work. Very often publishers will sell work to other publishers. And of course expenses are very important. I do a lot of work in New Jersey, Delaware, a Pennsylvania pharmaceutical company, and if I forget to get expenses ... I'm in real trouble....

Life of a Copyright

The question of the creation. Once you create a work, and you're the owner of it, how long does that copyright last? Remember I mentioned that eventually all creative work according to the Constitutional mandate have to go into the public domain and become part of the great body of knowledge.

Initially, the creator is the owner for the life plus 50 years. That's established pre-copyright law. And if you sub-publish a work without selling it to someone else, then you own it for your life plus 50 years. If you license it non-exclusive license, which is keeping copyright yourself, and just simply licensing the work to a publisher for limited use of perhaps one or two issues of the magazine or journal, for whatever the period of time that you decide.

If you want to give complete copyright ownership, what's called exclusive assignment, to a publisher, then the publisher gets it for 35 years from the time of creation, and then after the 35 year term, it automatically reverts back to the creator.

In the case of a work made for hire, the same thing occurs. You assign exclusive rights, the bundle of copyright, to the publisher for 75 years, after which it goes into the public domain. At this point in my life I really don't worry too much about that.

Very interesting concept about all this is since the creator is the owner from the moment of creation, if you do a work for someone and there's no agreement of any kind, theoretically you're still the owner of the work. There's a really big exception to that which I won't forget....

Who is the Creator?

Then the question is who are the creators. The publisher, who creates the work with their employee, they're a creator, the freelancer, who does work for a publisher, producer or an advertising agency, or somebody else, is the owner of the work. The person who does the actual work is the copyright owner.

Copyright is only allowed for an expression of the work, what they call the tangible expression of a work. Like this speech that I'm giving right now is not copyrightable unless it's either recorded or written down on paper. That's the way the copyright laws work. The question then is who owns the right.

Exclusive Rights Must Be Transferred in Writing

According to the law the only way exclusive rights can be transferred is a written agreement.

So if a freelancer does a job for an advertising agency, the advertising agency really has to get the right to ownership from the creator, and they in turn have to turn them over to the client, that might be a pharmaceutical company or a publisher.

This is the legal way that it's supposed to be done. I really don't know how frequently it is done that way.

Exclusive and Non-Exclusive License

There are two ways that rights or copyrights can be either assigned or licensed.

[1.] Exclusive rights is, as I mentioned, copyright, ownership itself. Those are the statutory rights. And this represents that bundle of rights. An exclusive right can only be assigned to a publisher by selling them. And if you relinquish copyright to the publisher, you can only sell it to one publisher at a time, but the rights are divisible. In other words, you could sell the right to reproduce it to a publisher, and you can bargain back the right to make a derivative work, for example.

[2.] A non-exclusive license is transferred for a limited period of time, and a ..., and you can claim copyright ownership of it. You can sell it to as many people as you want, and you can also sell individual parts of your copyright ownership.

An exclusive right agreement has to be in a contract signed by both parties. A lease agreement can be a verbal agreement, but it's really not a good idea. It's always best to try to get everything in writing and signed by both parties.

Part II: Pitfalls

The second part of my talk is going to be about the pitfalls in the copyright laws, the loopholes that some people say were inadvertently created, but after talking to some of the people who helped write some of those laws, I have some different ideas about that.

Under the new law, Chapter 2, the ownership chapter, initial ownership of the work belongs to a creator, and they have the option, in a signed agreement, of selling that work to a publisher, giving it ... unless, and that's a very big unless.

Exception: Work Made for Hire

Unless it's a work made for hire. When I was trying to characterize what a work made for hire is, this is what I thought, because there are so many works that are included in the work made for hire category, which means that there were other works that were omitted, and of course there was a lot of politicking involved, there was patronage involved, Senators who had publishing companies in their district wanted to support the publishing compnaies, and they wanted more of the work for hire issues favorable to the publishers. So it becomes a very convoluted kind of insinuation.

Over a 15-year period prior to 1978, the Copyright Revision Committee, which was really conducted by the Senate Subcommittee on Copyrights, tried to come up with what they felt were a fair and equitable distribution of rights, between the publishers, and the writers and other creators.

The problem for the creator is, Section 201(a) states that first ownership rights belongs to you from the moment of creation. From the time your pen touches paper.

But you have to get yourself though this work made for hire provision first. One of them is called the contribution to a collected work, and other supplementary works are in there. And once you get through that maze, you face another one, which is one that created by the publisher, an all-white all right contract. And once you've started to sort out all these problems, the pot of gold is yours.

So, first ownership rights belong to the creator unless it's a work made for hire, and the copyright law specifically says that a publisher who creates a work with their own employee is the owner of the work and the employee has no right to that work, and that's the end for the employee. Unless the publisher is willing in a written agreement to assign some of those right back, which is a pretty unlikely situation.

For the freelance creator first ownership rights belong to the creator, unless they sign an agreement that says, any one of these works that I mentioned are works made for hire.

Categories of Work For Hire

Let's take a look at those [kinds] of work [that can be work made for hire].

[1.] First on the list is a collective work. A collected work like a periodical issue, a medical journal, the contributions would be the article inside it. So a contribution to a collective work is a work made for hire. So if a creator signs an agreement saying that that contribution is a work made for hire, the publisher becomes the final owner. Collective works also include encyclopedic work, anthologies, and compilations.

[2.] Another kind of work made for hire is a supplementary work. That's like the front and ends of the book. It's something that's done by a second author in suport of work by a first author. It would include bibliographies and references, and pictorial illustrations, charts and graphs, and everything in that line are works made for hire. And here again anyone producing any of that work, signing an agreement acknowledging that it's a work made for hire, loses all rights to that work.

[3.] Then there's another work from the work for hire category. There are 9 categories of work which include 27 individual kinds of works. The motion picture industry was particularly interested in having any part of a motion picture made a work made for hire. Any part of an audiovisual work.

Interestingly, an instructional text, which is defined as a book that is used in systematic instruction, which suggests classroom use. So a lot of reference books in the medical field would not fall under the work made for hire category. These will turn out...

According to the legislative history, originally referred to maps rather than anatomic-type atlases that we have in the medical field.

Then translation, compilation, a test and the test answers. And if you've ever written test questions you can understand why the publisher wanted protection for test questions and answers under the work made for hire provision.

So the congressional pitfalls are what we consider to be those surrounding work made for hire. The 9 categories of work which include contributions to a collective work, supplementary work, and all of the other kinds of work.

Publishers Can Survive Without WMFH

Now a survey was done in the early 1980s, soon after the work made for hire provision was passed, because there was a movement that was started by Senator Cockburn, Republican from Mississippi, to reform the work for hire provision, because they felt there was not really an equal balance. They thought that writers got the best deal in the division of rights, and that artists and photographers go tthe worst part of the deal. So this survey was done and as you can see a large percent of the publishers were using work made for hire contracts, but interestingly enough there were some that weren't.

One of the things that interested me is for example, 70% of school book publishers, for example, were for classroom works, but 73% were using work made for hire on [?] hardcover books. Well, hardcover books would include a lot of books that are fiction and non-fiction, and theoretically, they're not supposed to use work made for hire. Then I lumped all these data together, and found that 65% of publishers use work made for hire contracts. The thought that came to me is how come 35% of publishers can still function successfully and show profit without the work made for hire contract. So these were some of the data that was presented in defense.

Unfortunately, the publishers and the motion pictures were there. It was one of the finest-honed lobbies you could ever imagine, and they convinced the Senate that they needed to have ownership rights of most of this work under work made for hire, otherwise they would go down the tubes.

Now the only way a work can be a work made for hire is if, and that's a big if, it satisfies 3 legal requirements: [1.] The work has to be specially ordered or commissioned by a publisher to a freelancer, [2.] there has to be a mutually signed agreement, and [3.] the work has to fit into the 9 categories.

This is what emerged out of the new copyright law. The big difference between a WMFH and a regular buyout in which you sell copyright, ownership and all rights, is the period of time.

Remember I stated before that the creator, creating a work, had the option of selling it to a publisher, and the first term would be 35 years, after which it automatically reverts back to the creator.

In a WMFH, it extends for 75 years, to the publisher, and then it goes into the public domain.

The question of course is, why did they have 75 years on a work? Well, there were certain kinds of work in the theatrical field, and certain kinds of book publishing, where they felt that there were certain kinds of work that had that kind of longevity, and this was the only way that they could protect it, because they couldn't get the rights back after 35 years.

Benefits to Publishers of WMFH

So the reason that the publishers want copyright is for the reason that I just mentioned, the longevity, and if they can get you to sign a WMFH contract, it's very convenient for them, because it automatically takes all your rights away.

And they want it because they can reuse the work again without seeking your permission. They can reuse it again without having to pay you again, they could resell it to other publishers without paying you, and they can alter it without seeking approval.

This was particularly important for encyclopeic publishers, and also motion picture producers, who had enough trouble explaining with the writers of motion picture films, every time they wanted to change something the writer has a fit. They want to be able to reuse it without having to track down the original creator, and one of the examples they cited was for example, somebody keeps relocating, changes jobs a lot, or else a woman has five husbands and changes her name each time and changes her address. And then it also saves them the bookkeeping problem of paying you reuse fees and other kinds of residuals.

Problems of WMFH: Inequity, Inconsistency, Loopholes

The problems that the WMFH has created is that [1.] there really isn't an equal distribution of work. [2.] Second of all, as these new cases have come before the court, the courts have been interpreting the different cases in different ways, so different parts of the country see the copyright laws in different ways, which is not the way it's supposed to work. Federal copyright laws, and any kind of law, is supposed to be common for everyone in the country. [3.] And worst of all, is that loopholes have been created by developing work made for hire laws which the publishers are taking advantage of.

So the advantages that publishers and producers have under this new law are: [1.] first they have copyright ownership of their employees work, under the WMFH provision, [2.] second of all they have copyright ownership of a freelancers' work, by use of these loss of rights contracts, [3.] third, they have restricted use of their work through the fair use provision. You can go into any library where there are copying machines, and you'll see signs that say this work is copyrighted and restricted. And ASCAP of course has to deal with all the gin mills and restaurants in the country that play music. Every time music is played, ASCAP got a fee, and then they distribute that money to the song writers and entertainers.

They also have substantial use of the work in contributions to a collective work. There is a loophole in the contributions to a collective work entitled articles for magazines and for journals. And they have unrestricted use of the creative work in educational broadcasting. So PBS stations can pick up anything they want, from any source whatsoever, and they pay a very very small fee to a certain licensing board, and that board in turn, if they can find you, pays you an even lower fee.

Courts Subvert Congressional Intent

As you know the system of government in the United States, we have a system of checks and balances, which has the legislative branch on one side, we have the judicial branch, then you have the executive branch which is either fishing in the islands in the Keys, or riding a horse usually in California.

So this issue really has centered on the Congress and the courts. And because of the WMFH provision, and because of the ways the courts have interpreted it, it's totally out of balance. Because the legislative branch created a new copyright law, but the judicial branch, as the cases have been coming through, have been interpreting those cases not based under the new law of 1978, but under the old law of 1909. This is obviously the House of Representatives, and what the Congress has done is they have created a law which is really dynamite, this WMFH provision. And of course, the court interprets those laws and what they have literally done is blown a hole right in the side of the copyright law.

Let's go back for a minute and review. Under the old law of 1909, the publisher was the owner of everything that they created, and they were the final owner under the way work for hire was interpreted by the courts. And under the new law, the creator is the owner, and they have the right to license the work to a publisher, and they are the initial and the final owner, unless the work is a WMFH.

Exclusions to WMFH

Let's take a look at this legislative enactment. What they have done for freelancers, independent contractors, is they have created these 9 categories of work, 27 works which are WMFH.

And when I looked at that list, when I first studied the copyright law, the thing that occurred to me is, well, what was excluded. And you can't find that in there. You can't find it in the 15-year legislative history, at least I haven't been able to.

So I sort of assumed that these are the things that are excluded.

Court Rulings on WMFH

Now let's look at what the courts have done.

What the courts have done for a freelancer is starting in the late 1930s and early 1940s, under the old copyright law, it just simply says that an employee [employer?] is the owner of a WMFH, and they didn't define what a WMFH is.

But over the years the courts have used what they call agency law, used by the IRS and some of the other, and some of the other, social security Administration, in trying to determine what an employee is.

And they said that a party that initiated a work, paid for it, took the risk, and supervised and directed the work, was the owner of that work.

So prior to 1978, every single thing that we did, a publisher owned just by virtue of saying that they had supervised it. And a number of cases came through.

In 1939, the fist case was Yardley vs. Hauptmann, and that case, they threw the whole system into turmoil by saying, that, ownership rights belong to the client, but renewal rights belong to the creator.

Then the next important case that came along was in 1962, the Brattleboro case, and in that case the court said that they did a review of all prior cases, and they decided that the commissioner was not only owner of the work, but they were also the author of a work that somebody else produced. And that was so bad that everybody figured that things really couldn't get much worse.

But then in 1972, they did get worse, because a court, in 1972, there was a case Fitcher Music vs. Orange, and in that case the court said that not only the party that has control and supervision of the work is the owner, but also they have the right and power to control and supervise the work, which meant that there was absolutely nothing left for the freelancer. So that was the real killer. They had essentially through the courts stripped creators of all their rights.

And actually, that's what I assumed whenever I did work for somebody, I just simply assumed that they owned it and that's one of the reason there were no contracts or agreements.

Then under the new law, a very interesting thing happened. The first case that came down, a second circuit case here in New York, and the judges actually read the new copyright law. Aikens vs. Empire Construction, where Aikens was an architectural designer, and he had architectural drawings and plans which didn't fit into the 9 categories, but there was no agreement so the case came before a court, and the court said, well this doesn't fit into any of the work for hire categories, therefore, the architect is the owner of the work.

But after that, a case came down in 1985, which became a landmark case, Calden Accessories vs. Siegel. In that case, the court said, the Second Circuit here in New York, the premier copyright jurisdictional body in the United States, everyone looks to the Second Circuit decisions, and in that case, what they said was that Alden had supervised and directed this work, therefore Alden is the owner of this work, but it was the creation of a statue of sculpture, and sculptures are not included in the 9 categories. Neither was there a signature between the parties. So two out of the three categories didn't fit. So essentially what this court did was, they just simply said that there is no new copyright law, that we're going by the standards set by the copyright law of 1909, so the result was that all the other courts in the United States started to follow that precedent.

One of the notable ones was Herbney vs. Laurel where a photographer got in the same situation, in Denver, Colorado.

So they were following the principles of the 1909 law. It just didn't make any sense.

Then, in 1987, in New Orleans, the court, probably because they were interested in what Playboy was up to, looked at a case, and they decided that we do have the new copyright law, and that we have to honor the tenets of the new copyright law. So they awarded copyright ownership to the creator of that work.

Now we still have this dicotomy, where we have some courts that are saying a commissioner owns the work based on common law principles, then we have the Eastern court which says, no we have a new copyright law.

They wanted to bring that before the Supreme Court, but because that was a convoluted case, they thought they'd wait until another case came up. The case that came up was this Reid case.

Community for Creative Nonviolence vs. Reid

Reid created this sculpture for a patron that was in Washington DC, the Community for Creative Nonviolence, and in that case, he didn't accept any money for the work that he did. It's a sculpture, so it doesn't fit into the 9 categories, and there was no signature. So they decided that's the case they're going to bring before the Supreme Court, to decide ownership rights. Is the commissioner going to be the owner in a work made for hire, or is the creator going to be the owner? And that's scheduled to come up in the Spring term.

The big question, of course, is why do we have all these squabbles and differences between creators and publishers, between the legislative branch and the judicial branch.

And I think I have a very nice phrase: Money.

Negotiating the Bundle of Rights

There's a tremendous amount of money involved in residual rights. So many writers, for example, just simply bargain with the publisher, for first ownership rights to their work. And there are residuals that they could ask for if they knew what they were and knew how to go about it.

The question is, is the publisher really willing to negotiate with somebody. Well, if you know what your rights are, and you have a little bit of experience in negotiating, it's definitely a bargaining situation. And here's some ideas on how to go about it.

The most important thing to keep in mind is that initially you're the owner of the work that you do and it is negotiable. These are what your rights are. Statutory rights, which include the right to reproduce it, and sell it, play it, distribute it, change it, revise it, do anything you want, those are all sellable rights.

You can go into a publisher telling him that these rights belong to you, and then of course all the different kinds of selling rights, mostly reuse fees for journal articles, and get into books as royalties, and very often bonuses. I have negotiated all of those things at some time.

Other negotiable items that you have as the creator are:

The right to break up a work and just sell individual parts of your copyright to a publisher, in a buyout where you assign the whole entire thing to them, or else limited use rights.

One-time, North American rights

One-time, North American use rights is one of the classic examples. That of course will include Canada and Mexico, so that includes the translation into Spanish as well. So what I like to do is say one-time U.S.A. rights, rather than one-time North American rights, and try to get additional revenues from translations into foreign languages, or use of the work in any English-speaking country around the world. Those are the things you have to think about.

Traditionally if you can discuss the issue of having a work assigned to just one issue of a publication, like Medical Economics, and if you could tell them that you would like to sell the right for them to use it in the July issue, for example, that's a negotiable right. You can ask for it, they might be just be willing to accommodate you.

Negotiating WMFH

Of course, the big question under the WMFH provision, because of the way the courts have handled this WMFH deal, the advertising agencies and publishers are now saying that everything is reduced to a WMFH, because the majority of the courts have been saying that supervision and direction, with payment control, is theirs. And the courts have ruled that way. Of course your argument is, Well, there's the [?] in the Reid case, which say just the opposite, but the publishers and the advertising agencies that let out assignments for periodical articles in particular, are sticking to their guns.

So the question of course is, is the WMFH assignment negotiable. I have been negotiating WMFH agreements over ten years. There are people who say that it can't be done. The reason is for example if you do a book that has really good potential for selling, and you do the writing for it, and even an illustrator can get $80 or $90,000 for illustrating an instructional text. An instructional text is a legitimate WMFH.

So I very happily sign a WMFH agreement and I bargain back for the rights that I want to keep. For example, I bargain back for revision rights. I would like to have first option to revise that book. I ask for display rights if it's a piece of artwork. And the publisher will always accommodate you. I take that back. In many cases the publisher will accommodate you.

Is it Worth Fighting Over?

Now these are the strategies that I use when I negotiate with a publisher for the sale of freelance work.

The first thing I do is I look at the work and I say to myself, first of all is this piece of work worth fighting over? Is it worth getting in any kind of situation with the publisher which is going to compromise my position?

And very often, if I'm doing a booklet, for example, for a drug company, on their particular kind of drug, and it's an educational piece for physicians, and I say to myself, does this really have any retail value, or any residual value, and the answer is usually no.

So I just don't quarrel over that kind of a situation.

And I don't try to create any kind of a situation that will compromise me.

The second thing I will look at is, is this work included in the WMFH provision? Is it included in the 9 categories? And if it's not--I carry around my little copy of the copyright law, which is a tiny little booklet that anybody can get by just writing to the copyright office, Library of Congress, Washington, D.C., and I show to them that this little thing can not be a work made for hire.

What do I Want to Keep?

And then I look at what the statutory rights are, and I try to decide, what would I like to keep, and what would I like to sell?

And the same with selling rights. Do I want to get reuse fees? Do I want to get royalties?

Then very often they will try to give you their contract. And you have to be very, very careful in accepting a contract from a publisher, because it's liable to have the word "work for hire" written any place in it, and if you sign it, then you've relinquished copyright ownership to your work for 75 years.

So what I always try to do is develop a contract of my own, that I would present to a publisher.

And then there's this little loophole that I was telling you about, articles for a journal and other kinds of periodicals. Let us review for a moment what a journal article is. Collective work is a journal, for example. The contribution to the collective work is the article that goes into that journal. And you own the contribution to the collective work as long as you don't sign this agreement that says it's a work made for hire.

And the copyright law says, in section 201(c) of that ownership provision, that in the absence of an agreement, an article for a journal belongs to the creator, and the creator retains ownership of that.

What the publisher gets in the absence of an agreement, is use of this for that particular collective work, the March issue of Medical Tribune, for example. They're allowed to make a revision of it, and they're allowed to use it again, in any collective work from the same series. That's a pretty narrow classification.

But many times, I could make an agreement, and list all the other kinds of elements that you want in your agreement, I don't even mention ownership rights, because I know that I'm going to retain copyright ownership by not even mentioning copyright, or anything regarding ownership rights. So that's another bargaining [?].

As I mentioned before, the other thing is, if there's no agreement at all, with the publisher. According to section 201(a), you own that story for your life plus 50 years, so long as you don't sign. Well, that may not really be a good idea, as I mentioned before, because the publishers are now saying that everything is a WMFH, so what I'm doing is I'm just going to wait and see which way the Supreme Court makes in the Spring term. I think that they're going to make a decision that's going to favor creators, and say, we have to empower the new law, the courts just can't keep assigning ownership rights to publishers based on the principles of the old copyright law.

So the alternative contract that I try to use, to replace a WMFH contract, if the publisher is willing to do it, and there are publishers who are willing to do it if you ask them, remember, there's the exclusive rights contract, where you assign to them copyright and all rights to the publisher, or else you can retain certain of those exclusive rights to yourself. The other is the non-exclusive contract, where you only license it for a limited period of time, the March issue of Medical Tribune.

Elements of a Contract

What are the elements of a contract that you want to include in negotiating such an arrangement?

[1. Length of Lease.] The first thing of course is how long you're going to lease the work to them for. Or whether you're going to give them exclusive copyright ownership.

[2. Reuse Fees.] Second of all, any reuse fees that you're going to ask for. That has to be specified in the contract. Usually I ask for 40 or 50%, and settle for anything less than that.

[3. Work for Hire.] The other thing, until the Supreme Court actually makes its decision, what I say in my contract now, is in this contract, both parties have knowledge that we don't work for each other. I'm an independent contractor and I don't work for the publisher. Then I say it's also understood that I supervise and direct my own work, and that I'm paying my own expenses, and that I take the risk. That way, they can't form me into a WMFH category based on the old law.

[4. Payment Schedule.] The next element is the payment schedule. Usually what I ask for is 50% up front, and then 50% when I deliver the manuscript to the publisher. Not when it's published, but when you deliver it to the publisher. Because it might never be published.

[5.] Expenses, very important item. I go out to New Jersey, way out to the boons of Jersey, and it takes me the whole day long, and every single time I make that trip I have to figure it into my contract. Estimations of expenses.

[6. Delivery Schedule.] And a delivery schedule has to be there. Here again what I try to say is, I'll deliver a rough outline in 30 days, and then have the balance in 90 days or 60 days after that. But there has to be something in there that will protect both me and the publisher.

[7.] Supplementary Work. Those things can be real expensive. Charts and graphs and pictorial illustrations and photographs. Who's going to supply those? Is the publisher going to supply them, or are you going to supply them? That could cost a fortune if you're going to hire some freelancer to do it for you.

[8.] Permissions. Suppose you want to use an existing photograph that belongs to another publisher. Who's going to ask for the permissions and who's going to get that work?

[9. Revisions.] Suppose they want revisions and corrections after you've finished the first rough that you've sumitted to them, or even after you've submitted the final manuscript?

That has to be committed to writing, either in a subsequent contract, of a codicil of some kind, or else in the original agreement.

[10.] Delays. Suppose the editor you're working with has to take a maternity leave, or, as happens in the pharmaceutical industry, the tremendous turnover in personnel is unbelieveable. You're working for somebody, and a couple of months later they're gone. So you want to be able to put a clause in there that will protect you from delays.

[11. Cancellation.] The same with cancellation. Suppose you're in the middle of this thing, and they decide they don't want it. So you want to have an agreement that says, you keep the 50% that they paid you up front as an advance, and then as a kill fee you want to say for example 50% of what the balance of the final figure for cancel out. And as I said I always start with that 50% and then go down to whereever it happens to stop.

[12. Plagarism.] You have to be able to warranty that everything that you're writing is original material, and you're not plagarizing somebody else's stuff.

[13.] A credit line is always a good thing to ask for. Once a work becomes anonymous, they can do almost everything they want with it. You will never be able to find how much you can get.

[14. Copies.] I always like to ask for free copies, if that's possible.

[15. Lawyer's Provisions.] And then I have another section of terms, these are strictly legal terms that my attorney gave to me, and that is, that this particular agreement will run for the full term of the agreement, there will be no cancellation, and that this represents the entire agreement, there will be no verbal agreement of any kind, anything subsequent to this will be put into some form of writing. And that the agreement is binding between both parties.

[16. Outline of the Project.] And I usually try to include at least an outline of what the project is going to be when I submit a contract or sign a contract.

Now we get into another issue. The copyright law as I said was written with a tremendous influence from the publishing and motion picture industry.

Publisher's Lawyer Admits It

In fact what we did with the National Writer's Union, up in Pace University, was we suckered one of the guys who was the prime architect in writing the WMFH provision to a debate, a panel discussion, we called it, for our poor organization. And he refused to come and debate with anybody whose name he recognized. So I agreed that I would debate him, so he said, well who's this guy Zuckerman, and they said, oh, he's just some artist and writer, and he said, OK, I'll debate him.

And it was right then and there that he admitted that he was one of the architect of the WMFH provision. And one of his cohorts was the general counsel for Meredith Corp., with whom I had also worked for before, and I know both of those fellows quite well. The fellow that came to Pace was the former general counsel for Time-Life, and writes lots and lots of contracts.

Things to Watch Out For

[1. "Master," "Lifetime," or "Work for Hire" Agreement.] So some of the first things that you have to look for in agreements that are submitted, and understand, is you have to watch out for the "master" or "lifetime" agreement. You have to really read the agreement carefully. And if you ever see the word "Master" written across the top, you immediately know that they're trying to get rights for the rest of your working life.

The same thing with an "all rights" agreement. You want to make sure which parts of the copyright ownership they're trying to get. And of course WMFH. You have to look the contract over very carefully and make sure those words aren't written, unless you acknowledge that it's a WMFH and you're willing to sign a WMFH agreement.

Now the easiest circumvention of all that these fellows knew they were putting in to the WMFH provision ... [turn over tape] ... even on WMFH contract the publisher will put up the WMFH contract before the writer and say, either you sign it or you don't get the work, and they don't even want to argue about it, so that's a real problem for copyright law.

[2. Promises Made in the Heat of Passion.] Some of the other interesting things I've run into in my experience of course is when you first sit down and have your first martini and a nice lunch with them, they'll make all kinds of nice promises to which later might not come to fruition.

[3. Work Before Contract.] Another thing you have to watch out for is starting work before a contract is signed, because the promises may not be realized in that contract when it's finally signed.

[4. Payment Before Contract.] Another thing is accepting a payment in an advance before the contract is fully negotiated, because if there is a falling-out afterwards, they're going to see if they can get their money back, even if you've put a lot of time in on the job.

[5. Work Beyond Contract.] Another thing I mentioned before is any extra work that is done beyond the contract terms, that should be comitted to writing in another contract.

[6. "Standard" Contract.] Another thing is a lot of them are going to tell you right off the bat that a contract that they use in their company is a standard contract, left from some early days, and if you accept that, you're really a loser, because if you negotiate with them, and talk with them, very often they're going to have another contract in the drawer, and it's going to be a contract in which they'll be willing to relinquish certain kinds of nonexclusive rights to you.

[7. Required Revisions.] Another thing that you have to watch out for, if the contract says that if you don't do any revisions to the work, particularly in the case of a book, you don't get any residual fees.

The master contract that we talked about.

[8.] Hidden contracts in purchase orders. That's one of my favorites. Sometimes the terms of the agreement will be on one of the purchase orders. And they say Conditions of Sale on the back, printed on the back, in light gray, so it doesn't show through to the front, and in small type of course, are going to be the terms that they want, and that's where you might see the term WMFH or some other phrase similar to that.

[9. Payment for First Run Only.] Another one that I almost got caught in with a publisher was print run without quantity specified. For example, we agree to pay Zuckerman so much money in royalties based on sales of the first run. Suppose they pull a short run. That's the end of my royalties and I really don't get what they promised me.

Contest Winners Get the Worst Contracts of All

[10. Contests.] Another interesting thing are the competitions that a lot of the magazines and book publishers run. The creator is the owner of that work, and then you sign this application for the award, and the thing is just completely loaded with tiny little type, and when you sign that, and you win an award, because everybody gets an award, because that way they get hundreds and hundreds of manuscripts, and you get this nice letter of congratulations.

Here's a classic example. This is Redbook magazine. I don't remember how far back this one goes, it's a couple of years. Eventually what they are doing is giving an award for a manuscript that is submitted and then they'll return it after a year if they don't use it. In the meantime they've got control of this for a whole year.

And there are cases that are much worse than this where they'll give dozens and dozens of awards and the contract will say that you relinquish all rights to the publisher if you get an award.

[11. Rebinding.] Another one that happened to me one time was that I did a small book for somebody and I was getting royalties on it, and then they took another book and glued it together, and said, well it's not the same book anymore, that was the end of my residuals.

So to summarize all this that we've been talking about, first of all you can get a copy of the copyright law. There are only two or three chapters that are critical, and they're the first 2 or 3. Subject matter of the copyright, copyright ownership, the ownership provisions that I talked so much about in Chapter 2, the duration of copyright, the section on plagarism.

Dangers of Plagarism

You have to be so careful about that, particularly when you're writing medical stories, because facts and ideas are not copyrightable, so you could go to somebody else's article, in searching your records, and then use that material in an article, and they could claim that it's a plagarism of some kind. And they could be entirely wrong about it, but if they get a lawyer and sue you, then you have to get a lawyer, and the publisher has to get a lawyer, so sometimes in a contract it's good to say that in the case of a lawsuit of any kind, the publisher agrees to at least share expenses if you're proven not to have plagerized somebody else's work. So that section on plagarism is very very important. If the opposition, the plaintiff in the case, can show that he did this deliberately, there's a clause in there called criminal infringement, and that's a $50,000 fine. So you have to be extremely careful about how you use other people's references, and also how you paraphrase.

There's an attorney named Ted Crawford who produced a book called The Writer's Legal Guide. It's really a good book. Unfortunately it doesn't go into WMFH very much but it has a lot of sample contracts in it, which is really good, and there are many books on the market, it really pays to dig those out and look at those books for ideas. There are also wonderful ones for pictorial work as well.

The most important thing is to remember to go in there and negotiate with your publisher. Watch out for the small type, especially that WMFH provision, remember the different categories that fit into the WMFH classification, don't be too suprised if you run into this kind of situation where you feel that you have a certain amount of experience, now that you know what your rights are, how to negotiate them, and you'll go in and they'll tell you you need to sign this thing or you don't get the work. Because that, unfortunately, is the end.

Now let's start with the questions.

Q: Can you talk a little bit about the structure that we come upon now where the publisher tells you to organize and manage another group of people. You have committed an idea. And especially in electronic publishing, you need to get other writers to work for you, and with you, and your contribution is this outline of your intention, plus you're managing other people.

A: OK, the thing that you have to realize is that immediately, you're dealing with a copyright law protection situation. So if you're going to go out and hire freelancers to work for you, you're going to have to get them to sign a employment contract, which says that they are workers for hire, and everything that they do belongs to you. Now the publisher might in turn ask you to sign a similar agreement, for everything that you do as a freelancer, or certain rights are returned to you. All of this is committed to writing in some kind of a contract.

Q: Who gets royalties? How?

A: Well, that's all negotiable. That was the whole point of this lecture, that you now can go into a publisher knowing that you have certain rights that you can negotiate with a publisher.

Q: I thought I heard you say on the one had that it is advisable for a publisher that you're working for compensate you for your expenses, but I also thought I heard you say that one should put in to the contract that I supervise my own work and I'm responsible for my expenses.

A: No, I didn't say that, I said I supervise my own work and I direct my own activities, and I'm paid for all the expenses that I incur in the production of this work. The other expenses that I was talking about were travel expenses, and those expenses have to be itemized.

Q: Are you differentiating between your own overhead expenses and those that you incur for the specific work that you're doing for this client ?

A: I just put that in there so that they can't turn around and say, well, this person wasn't really an independent contractor, he was an employee, because we paid for the work. So I simply put that in there in combination with the fact that I'm supervising, and directing, and taking the risk, and paying for doing this job. It's just a clause in there as protection....

In Court, Publishers Lie Through Their Teeth

By the way, one real important point I want to make is, don't ever get in a situation where you have to go to court. That's about the worst experience you'll ever have in your life, and you'll probably lose in the end. The most unbelieveable thing happens. Publishers will get these real high-class New York lawyers, highly paid, and they will have their publisher and the employees of the publisher, put their hand on the Bible, swear to tell the truth, and just lie through their teeth. I was so shocked when I first saw this actually happen. The lawyers explain to me that that happens in every courtroom. Somebody's lying, right.

Q: I brought along a couple of those difficult contracts. And I wonder, you were speaking specifically about the writer giving warranty, and also talking about warranty and infringement. You gave Redbook as an example. I have one of these difficult Redbook contracts that goes to all of these, the writer claims, no infringement, no nothing, and it says, the author agrees to hold Redbook harmless from any claims of the writer for breach of the first paragraph. Now I have tried to cross that out, and more recently several publishers have put this hold-harmless clause into their contract and their legal department will not permit you to cross it out. Now the only solution it has been proposed to me is through the American Society of Journalists and Authors, which just says in several places down here, you have paragraphs down here, you haven't plagarized or infringed, you say to the best of the author's knowledge. Does that know?

A: When I get into situations like that I tell them that I belong to a writer's association and we have a contract that all writers, I tell them that all medical writers use, if it's a medical publisher, and I try to get them to accept that, and then I .... differently so that they at least will participate in some kind of liability case.

Q: Do you have any luck with that, because I have one of those sample with ... publisher and the ... publishers will not take it. I just got a contract with a big publisher.

A: I'm not suprised, and as I said at the beginning, the only thing that I'm giving you are some ideas on how to negotiate with these people. That doesn't mean that they're going to give you what you want. That means that most of them are still going to take a hard line.

Q: Can I open it to the audience? Have any of you had any luck with these hold-harmless clauses.

Q: Why is this that medical patents don't come under the copyright law? That would be much more favorable....

A: Patents are a completely separate entity from copyright. Copyright is only protection for literary and artistic work. Patents are for useful objects.... In fact the copyright law says that if you do a beautiful design on something that has functional use, the copyright only extends to the beautiful decoration, not to the function itself.... useful in a ultilitarian sense. One of the classic cases that came before the court was a lamp post, because it was a beautifully decorated lamp post, and the designer tried to get copyright to the post itself and everything else that went with it. And the copyright office finally gave them copyright to the design, and not to everything else. That's why architectural plans were left out, because the architects were claiming that they owned the building....

Q: You mentioned that non-fiction books can be excluded from the writer for hire law. What happens when when you deal with book packagers, and you're writing a non-fiction book, under a writer for hire?

A: You're dealing with a packager who wants you to sign a work for hire agreement? If the non-fictional book is not an instructional text, used in systematic classes in instruction, it's not a WMFH. If it's also not a compilation of knowledge. So what I do I could simply show them the copyright law. It cannot be a work made for hire. And if you want to have your attorney write them a letter, in case they don't believe it, that's the only route you can go. You can only go so far as to tell people these things and actually show them in the law itself. And what happens after that? It's a take it or leave it situation, because they have the power.

When to Get a Lawyer? Who to Get?

Q: How far do you really need to go with a lawyer or an agent?

A: I usually save it for a major project, like a book, where there's a substantial amount of money invovled. For little things like articles, for a journal or things of that nature, I've developed my own contract. I used the panel I showed you, elements of a contract, and each time I get a job where I feel a contract is required, I make it up from that list of material, as it suits the particular job. I've done a couple of books which were very successful without an attorney.

But the thing is, the worst mistake you could make is to hire a regular attorney who is in general practice. That is just absolute death, really. You have to hire a publishing attorney. It will cost you more. Someone who is totally familiar with publishing, copyright, and contracts. When I first started out, I was using general lawyers, and they just don't know what the law is. This is a specialty that requires real expertise.

Q: How much do you pay your attorney to look over a contract or help you with one, or give advice?

A: Here again, it depends on how good a salesman you are. If you can claim poverty as a poor writer, the chances are you can get it for less. But don't be suprised if in New York they'll ask for $200 an hour. If you're lucky you might be able to get it for $150 or $125. Now there's this organization that somebody mentioned, Volunteer Lawyers for the Arts. The only problem is, they won't work with you unless you can show that you make less than $15,000 a year, so there goes Volunteer Lawyers for the Arts.

Q: What about expenses. How about things like having to do a lot of telephone work?

A: That's included in expenses.

Oral Contracts

Q: I write mostly for magazines, news magazines, and my contract is an oral contract over the telephone. Do I understand you correctly that you say that if I make an oral contract over the telephone that it can't be work for hire?

A: I don't believe that I said that. What I said was that non-exclusive transfer of rights can be verbal, that is where you're just simply giving them use of that work for a limited period of time and in a limited publication, but if you give them copyright to that work, it has to be submitted to writing, and both parties have to sign it.

Q: Can they get work for hire if I don't give them a copyright?

A: If it's a WMFH, and there is no contract, first of all you can't have a WMFH over the telephone. A work for hire has to be signed.

Q: So if I do all my negotiating with them over the telephone, it can never be work for hire?

A: That's right.

Q: I can always resell the article to another magazine, or modify it, or right a derivative work, and I don't have to worry about WMFH.

A: That's right. But are they ever going to send you a purchase order, or some kind of a document in writing acknowledging that, yes, you're going to do this work and this is what you're going to do?

Q: Sometimes they do, usually they don't.

A: In that case, you're very fortunate, because you're spared all the aggrevation of negotiating with people.

Q: That's the nice thing about hard news.

Q: Endorsement of a check.

Q: That's not a check, that's a draft.

A: When you get paid.

Q: A check can't have an exclusive restriction on it. At least when I was a legal secretary it wasn't allowed to have that, because then it wouldn't be a check, it would be a draft. A bank can't be responsible for knowing when they cash your check, whether or not you've filled all the terms of your agreement.

A: Well, what happens is, written on the back of a check, it says, this is a work made for hire, and if you sign it, it's going to go back to the publisher. The publisher's going to be looking for that check when it comes back, and then they're going to Xerox it and put it in the file, because you signed a WMFH agreement.

Q: My understanding is that if they put a qualification like that on the back of a check, that's not a check. A check can't have a qualification like that.

A: They've been doing that.

Q: I hear that if you accept money, and cash the check, that that in itself is evidence of your acceptance of your agreement, whatever the agreement is.

A: I'm not familiar with that. The only thing I can tell you is that if there's nothing written on the check, you simply endorse the contract.

Q: [illeg.]

A: As I said before, when these cases come to court, and they ask the publisher who's going to claim the supervision and direction, what did you do, they're going to lie through their teeth. They're going to say, well I told them exactly what I wanted, exactly how to do it, had him bring it back and I checked it over....

Q: When does this occur, other than when they really want you personally to do the work, and they're willing to negotiate away some rights....

A: If it comes up in the discussion, and they say this is a WMFH, and you say it can't be a WMFH, and they say, yes it can because we're supervising and directing this work. And you say, how do you think you're directing this work, since you told me me to write an article on this particular procedure, and I did everything. Again, it becomes a negotiable issue. Everything boils down to a negotiable issue. If you keep your mouth shut, and then try to talk about it, then you're going to be on the short end. The best thing is to deal with these subjects up front, as they come up.

How to Protect Your Work

Q: Most of the work I do is very fast turnaround time, 24h, 48h, write a quick paper, whatever it happens to be. There isn't time to prepare a contract. In order to protect rights for something that might eventually be distributed, does that mean that I should write down, copyright, my name, date and the year? Does that give me the rights? Or is there some way of protecting me in the absence of the formal contract? Will they come back and negotiate with me if they see that?

A: You brought up part 4 of my talk, which I didn't give, and that is, how do you protect your work?

The new copyright law, which has been in existence for 12 years, provides that if you put C in a circle, your name and a date, then you have established for the world to see that you are the copyright owner of that work, and if you do it wrong, and you make a mistake or leave it out, they give you five years to correct it.

But an interesting thing happened. The United States just joined the Berne convention. And the reason we haven't been a party to the Berne convention all these years is that we had a two-tier system of protecting rights, which was a registration system, where you fill out a form, you send ten dollars to the copyright office in Washington, and your work is officially protected. The Berne convention does not provide protections of any kind. They just simply say, you did it, you own the work, if it ever comes to a court you just have to have the documentation to prove that you are the creator.

And the United States would not accept that. The United States joined the Berne Convention by compromise. They said that we will make this optional for people. We're not going to dismantle our whole system of registration, and depositing works in Washington. We're going to make it optional.

I like the optional idea, because I see so much work plagarized, it's just incredible. So instead of sending ten dollars, which is a lot of money--they just tried to raise it to 25--ten dollars for every piece is a lot of money. But they have another provision which is called a deposit requirement, and in a deposit requirement, you only send two dollars, and a copy of your work, without the registration form, and you just simply say, in a letter that accompanies it, that this is a deposit that I am making, please send a letter of acknowledgement that you have received it. And I'll also send a self-addressed envelope, so that they don't get careless and forget about it.

But under the new Berne convention, it's not going to be necessary to do that. But I advise people to do it. I think that putting a C on your work with your name and the date is really essential. Even on slides.

Q: Question about the verbal contract on the telephone. The problem I have with that is what happens when you do your part and they don't do theirs. They don't pay you. I like to write a letter.

A: Sure, and you say, this letter will confirm our conversation on the telephone today, and you've got the date right on top of it. That's the way to do it.

Q: And do you ask for acknowledgement from them?

A: You can, but I'm not sure that they'll do it or that it's absolutely necessary, because in a case like that, obviously you're just giving them one-time use of work.

Subcontracting Motion Pictures

Q: You said that art work that goes into a motion picture is a WMFH by nature?

A: Yes.

Q: The film as a producer you then pass on to the client. Some clients explictly write that all elements contained in the film belong to them, other clients don't, they just say we will have the copyright on the film. What about reuse on that artwork? Suppose you want to use that illustration again in some other piece on a similar topic? By nature of the drug company owning the film, do they also own the original artwork for that, or do you as the producer own the artwork?

A: If you signed an agreement saying that the work was a WMFH, you don't own anything, unless the contract also says that you're allowed to reuse it for another work.

Q: The other question had to do with cancellaton of projects. The difference between an employee, unless it's a freelancer you use over andover again, is that you don't have the same kind of long-term, learning relationship that you have with an employee of the company. So you hire somebody on good faith, because they show you their portfolio and their references, you give them half of it down, and after three months goes by it's just not working, they're just not doing what you want, and everybody acting in hopefully good faith, at that point they say now give me another 50% of the back end, now you've got 75% of your writing budget gone and you haven't gone anywhere. This is something that seems to go on as a nature of the freelance experience. I'm wearing two hats, one as an employer of freelancers and the other as a writer. How do you get around this? How do you work cancellation things into contracts that somehow you can part ways without

  • What if two weeks after it can't be worked out? You've already paid 50% of your writing budget away?

    A: These are the kind of things that, with experience, like you have now, you've committed to writing, an agreement, people that you've hired, to work for you, and your client, on strictly contract terms. Anything that's a negotiable item, promises, promises. Everything should be committed to writing, because if you forget to put something in, and you get trapped on it later, it's just too bad.

    Q: Can you put a clause in the thing that says if after whatever time it is, we cannot agree upon an initial draft of this--

    A: Absolutely. A contract is an agreement between two people. You can agree to anything you want. That's why I've been in a tremendous fight with these medical artists, because these medical artists keep saying in all their meetings and all their publications, that WMFH is not negotiable, and anyone who signs one should be taken out and shot. And I've been negotiating WMFH agreements for 10 years. Because a contract is an agreement with two people where they have come together and agreed to certain terms. So if a WMFH contract, I relinquish copyright ownership to the right to reproduce the work, and the contract also says, but I have the right to make a derivative work of it, and I have the right to display it.... I'm doing my dissertation at Berkeley University in the School of Education. I give this lecture to the law students every fall. The whole thing boils down to the very simple premise that two people have agreed to something, and they have signed their name. And the reason all these court case have come up, with all these troublesome fights and whatnot, is that there were no agreements. If there were agreements, they wouldn't be in court, because the asgreement would have settled all the issues. The ones that are profiting from what's happening with the new copyright law are the lawyers....

    Reselling Derivative Works

    Q: I'll write a story for one magazine, like Oncology Times on medical malpractice, and then I 'll go write a different story on the same subject, on medical malpractice for the general practitioner, for say Medical Tribune. And I might interview a couple of more people, change the lead, rewrite the story a little bit, but maybe 50% of it might come from the original article. This is a derivative work, right.

    A: Yup.

    Q: What are my rights to do that? Are there any restrictions on my doing that?

    A: Did you sign any agreement that said you wouldn't do that?

    Q: Nope. It was all over the telephone.

    A: OK. So then you answered the question. You can do anything you want with it. It belongs to you.

    Q: And if I did sign a contract, as long as I gave them first rights of any kind, I would have the rights to do it again in a derivative work.

    A: If you made that. The thing you have to watch out for before the Reid decision comes before the Supreme Court. The first publisher could claim that they supervised and directed you in doing that work, therefore by virtue of Alden Accessories case and the others, they are the property owner of that. So you're on tenuous grounds by doing these telephone deals and then turning around and selling the same thing to somebody else, by paraphrasing it.

    Q: If they claim that they supervised and directed me.

    A: Yeah, they're going to do it if they decide to do it. They're not going to do it over an article in a journal. Try it with a book.

    Q: Usually with a project with a pharmaceutical company, we submit it to them and they review it in house and come back with suggestions, changes, required changes. Does that come to supervision?

    A: If it ever came to a fight it would. That's why in my agreement, I supervise and direct my own activity.

    Q: And you don't put anything in about review time, how fast they have to get it back to you?

    A: Yeah, those are the elements of a contract. Absolutely. Sure. Because that's the schedule. I've had clients I've worked with for 20, 25 years. I don't even bother looking at contracts anymore with them. Because first of all the drug that we're working on as indication for toothache.... I try my best to avoid any kind of a situation that can scare them. I don't come rushing in with these contracts, because that's the worst turn-off you could ever devise. I just size up clients all the time. And I try to make decisions on what's the best thing to do, just on an intuitive nature. OK, I guess we're finished.