Friday, January 13, 2006

Sample contract: The Bold New Era of Electronic Media

Back in July of 2005, I replied at length to one of Dave Sim's letters (the back and forth is posted at the Creator Bill of Rights site forever accessible from the menu at your right). Relevent to the discussion underway here, I've decided to open up discussion of actual contracts and legal documents that have crossed my desk since the late 1990s by citing the particulars of the most recently rejected contract.

Before we get into this, let me remind everyone I am not an attorney or in any way practiced in law. My insights and discussion is founded upon three decades of freelancing, and my considerable experience with contracts as a freelancer.

Here we go:

I can’t address contemporary indy comics contracts with any particular insight, as the only ones I’ve been privy to aren’t mine to discuss, but it is interesting to note that yours [Dave Sim's] statement “...when creators essentially started getting absolute rights and leaving the publishers with no rights or few rights and certainly few venues by which to profit from being publishers” is already being aggressively addressed in other markets.

Note, for instance, that your suggestion for some sort of industry standard for terms by which a publisher might be rewarded long-term for offering beneficial advice is already precluded by existing agreements that must be signed before submissions are even considered, in which the freelancer acknowledges other work just like it might already be under consideration -- effectively signing away any proprietary rights to one’s work just to have it considered for publication. In the vernacular of the Roy Rogers westerns, “Cut ‘em off at the pass!”

[Note: I will find a copy of this type of pre-submission document and post it here in the near future. Continuing:]

Intellectual property is the coin of the 21st Century, and we’re seeing how this is playing out in multiple fields. It’s been interesting to see how some of the recent contracts I’ve been offered address this situation. In all venues -- comics, magazines, newspapers -- the coin of the realm is clearly that which can be translated to other media. In many such agreements, language providing the illusion of creator ownership (and illusion of negotiation, when they are almost always take-it-or-leave-it fait accompli agreements) while assuring the publisher gets the real goods has become as tortured as the U.S. Attorney General’s justification for the current administration’s treatment of detainees (how’s that for hyperbole?).

The most inventive of these basically spell out all the rights the publisher is acquiring (often for a song), while acknowledging somewhere along the line something called copyright stills belongs to the author/creator -- after the contract has effectively stripped away anything of value from such ownership.

Case in point: after completing a trio of articles for a local newspaper for which I’ve written off and on since 1998 (including over a year as a regular weekly columnist), and which is now owned by a larger media corporation, my standard pay invoice procedure was interrupted by an apologetic letter from the editor and the following contract.

This is not the first time I’ve seen this kind of retroactive “your pay for THIS job now grants us THESE rights going back to 19--” contracts; the first time I saw it was, of course, Marvel’s “blanket work-for-hire” contract in 1978, the first and last time I ever signed this kind of reprehensible document; the first time I saw it in the magazine market was Starlog Communications’ retroactive work-for-hire contract in the early 1990s, after I’d caught them reprinting my copyrighted Gorezone column “With My Eyes Peeled” in their Italian editions without negotiation, permission, or payment. It’s too bad, as it means one simply refuses payment, refuses to sign, and loses another venue for work -- but they lose another creator/author in turn. All of this cumulatively marginalizes all but those freelancers with either the clout to insist upon genuine negotiations and mutually beneficial contracts, or those willing to sign anything for any level of work for any level of payment.

I am presenting the contract as it was received, mere days ago, and offer it as a current legal document circulating in the journalism and newspaper field, with parenthetical numbers to footnote my comments, which follow.

Dear Contributor to [the Publisher],

This letter is an agreement between you and [the Publisher] concerning materials you submit for publication (“Materials”). You will be paid fees for these Materials as negotiated between us on a per-piece basis (1). You agree that any such Materials will be your own work in which [the Publisher] will enjoy non-exclusive “publication rights.” (2) [the Publisher]’s “publication rights” shall include the right to publish and republish the Materials; the right not to publish the work, despite having paid for publication; to create derivative works; to use, adapt, modify, perform, transmit or reproduce such Materials and derivatives therefrom in any form or medium, whether now or hereafter, throughout the world, including, without limitation, compilation, microfilm, electronic or other databases, and any digital format in any medium, and to transfer or sublicense any of the publication rights to any entity controlled by or acting for the benefit of [the Publisher] or with whom [the Publisher] contracts.

Notwithstanding this grant of right, three days after first publication of your work in [the Publisher’s venue], you may republish the Materials in any form or medium without geographical restrictions. (3)

You agree that you will be the sole author of the material, which will be original work by you, free of plagiarism, that all facts and statements in the Materials are true and that the Materials do not infringe upon any copyright, right of privacy, proprietary right, right of publicity or any other right of a third party.

You agree that [the Publisher] has the right to edit the Materials as it deems appropriate for publication, and that you will cooperate with [the Publisher] in editing and otherwise reviewing the material prior to publication. You will cooperate with [the Publisher] if any complaints, claims or litigation should arise against [the Publisher] regarding your Materials, and if you comply with the terms of this agreement, you will be entitled to any applicable coverage arising from any applicable [Publisher] policies respecting your Materials. You agree that the Materials include any works by you published by [the Publisher] since September 1, 1995 (4). You retain copyright to all Materials covered by this contract (5).

You are responsible for the payment of all federal, state and/or local taxes with respect to the services you perform for [the Publisher] (6) as an independent contractor. [The Publisher] will not treat you as an employee for any purpose (7).

The submission of Materials by you as a freelancer, as well as the receipt of payment for such Materials is a binding acknowledgement of the grant of these rights to [the Publisher], which will be relied upon by [the Publisher] and other entities with which [the Publisher] may contract (8). In addition, your endorsement of any check issued to you shall constitute your confirmation of the continued existence of this agreement (9). If this is acceptable, please sign and date the enclosed copy of this letter, provide your Social Security number, and return the signed copy to me.

We look forward to working with you (10).


(1) Note: Nothing was negotiated -- this contract was for work already published last month, which was invoiced per usual sans any such document or signing required. Negotiation has been actively discouraged, leaving me in the position to explicitly state what they cannot do with my work, insist upon payment or be willing to lose that earned income, and go. I have, in fact, been until now paid by this Publisher the same per-piece rate I was first paid in 1998, with the understanding per verbal agreement in 1999 that they are purchasing one-time, first-time rights only with no electronic media or online publication rights. Whenever a per-piece rate increase has been inquired about, it has resulted in nothing being renegotiated -- and, in the case of my weekly column, mutual termination of relations -- hence the increasing infrequency of my writing for this publisher.

(2) These are their quotations marks, not mine.

(3) However, one’s rights to said material are so compromised by this contract that one could not, for instance, do so via an agreement with a subsequent publisher or venue that required the very next paragraph of this contract be observed: that one’s rights to the Material does “...not infringe upon any copyright... proprietary right... or any right of a third party,” in which case this Publisher would be an infringed-upon third party. This is the Catch-22 of the contract, implying the author has rights left to sell or traffic after signing this document. The author does not.

(4) Ah, the zinger, neatly buried in paragraph four. For all intents and purposes, this means if I accept the $75 due me for the three articles being invoiced -- a pittance -- I have retroactively revised my prior agreement with the Publisher, and signed away all rights to almost two years worth of weekly columns I am about to anthologize in book form, and all other articles, some of which I have already resold to other publishers over the past seven years.

(5) Another beaut, buried at the end of paragraph four -- after, of course, having stripped away all rights relevant to one’s ownership of copyright. Beware this kind of language in all contracts; I have seen this sort of language and placement rendering copyright ownership moot in two comics publishers contracts since 1997.

(6) Note the shift from Materials -- a finite, defined quantity -- to “services.” I am not a lawyer, and cannot articulate what this means.

(7) This is standard work-for-hire language, BTW. Signing this agreement gives one none of the benefits of an employee, none of the benefits of a freelancer, as far as I can see.

(8) Note that, with signing, the author has already implicitly agreed to multiple contracts with entities other than the Publisher. This statement here means one has done more than explicitly agreed to the Materials as a transferable property, but indeed has agreed to unknown/undefined contracts with unknown/unspecified entities.

(9) The 2005 corporate media variant on the old Marvel ‘back of check’ agreement: “endorsement of ANY check issued to you” (my emphasis) explicitly extending the terms and “continued existence of this agreement” -- hence, it is both retroactive, per the penultimate sentence in paragraph four, but also covers all future Materials once checks are endorsed.

(10) Not bloody likely in what’s left of this lifetime.

Having now offered you the complete contents of a contract submitted to this freelance writer as recently as June of 2005, may I humbly suggest we all agree the Creator Bill of Rights is still relevant, and to more media than just comics?

[End of July CBR site letter excerpt.]

By the way, that issue was never 'resolved' -- that is, despite my calls to the paper's relevent editor, and the suggestion from said editor "we get together on this next week," I never signed, the newspaper never paid me, and my attempts to pursue the matter were simply ignored. In my experience, this is how these matters are 'resolved' by many publishers, and how freelancers 'lose' an account -- when the terms of employment are suddenly supplanted with a revisionist, almost always retroactive Draconian "new agreement" (which no one has agreed to). If one asks for negotiation or demurs, end of story. End of account.

[To be continued as time permits...]


Blogger Daniel Barlow said...

As someone who spent two years working for the company you mention, I'm not really surprised by that contract. Wonder what the other columnists there think of this contract?

Can I get a clarification here, Steve? My reading of that contract suggests that by signing it - which is the only way to get payment on three columns already written (and published?) - you would be transferring the reprint rights of those works - and any others you have written for them since 1995 - to the company.

Am I wrong here? My "legal talk" decoder ring is built from spare parts picked up in the hallways of local district courts.

Blogger SRBissette said...

Written AND published -- and yes, I would be transfering not only reprint rights on everything I've written for the paper (since my column began in '98), but also electronic/media rights. Hence my reference in the post to "retroactive."

It's reprehensible, and sadly a condition I've seen creep into a number of dealings with both the comics and the newspaper industries.


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