Thursday, July 03, 2008

So much for first rights; Transcon contract means publisher holds all the cards

There are people in the magazine business who think that freelancers are a bunch of whiners, particularly about money. But it is difficult not to see the freelance writer's point of view when looking at the contractual terms and conditions being imposed by Canada's largest publisher of consumer magazines.

Recently, a copy of the Transcontinental Media Author-Publisher Master Agreement came into our hands and we were startled to see how far the trend is accelerating towards paying less and less for more and more. Effectively, the concept of a freelancer selling "first publication rights" and retaining control over where and how work is published is being dispensed with.

The language of the contract gives Transcon control over the disposition of an article for a year beyond publication.
Notwithstanding Section 1.1 [which says after first publication the Publisher's rights become non-exclusive] the Publisher’s right to publish the Work shall remain exclusive for a period of twelve (12) months following first publication.
For its article fee, the company demands the exclusive rights to publish the article anytime within two years (!) and re-use of the article in any of Transcon's many online portals (15 such portals are listed on its website), in any form and without compensation. If the article is translated or put in another magazine or published in a "paper format special issue", the writer will be paid 10% of the original fee -- but the company reserves up to three months for payment. An explanatory note in the contract says:
For example, if you write an article about breast cancer, we can include your Work in the paper format issue of a publication, in the publication’s website as well as in any material that promotes a publication or the Publisher as a company; we can also include your Work in another website owned or operated by the Publisher about some other subject such as women’s health.
In addition, the agreement provides the right, within 12 months of publication, to match the fee offered by a competing magazine "in order to prevent the Work from being sold to and/or published by a third party."

Of course, freelancers don't have to sign such an agreement or sell their work. But when a company controls some of Canada's largest and best-known national magazines and therefore the best freelance markets, particularly women's service titles such as More, Canadian Living and Homemaker's, this is not a very sensible alternative.

It should also be noted that most experienced freelancers value their relationships with particular editors and magazines and don't have a problem with a publisher requiring options on reuse of work -- but they do want to be paid a reasonable fee for it.

We asked David Hayes, a veteran and highly respected freelance writer what he thought and this is what he said:
Talented freelancer writers are soon going to be an endangered species. True, a few who are valuable (and aggressive) enough drive their rate up, but in general many Canadian magazine publishers pay rates to their writers that are roughly the same as they were 30 years ago while paying for every other conceivable operating cost in 2008 dollars. And when asked about it, they smile wanly, and say, “Well, we just can’t afford to pay freelance writers any more.” When the truth is, they do it because they can get away with it. No wonder the resentment is approaching the boiling point.

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28 Comments:

Anonymous Anonymous said...

When oh when will people realize that the freelance/pay rates situation is like any other product or service: suppy dictates demand (and pay rates). So long as you've got people willing to hook for 30 or 90 cents a words for the vainglory of seeing their names in print, so long will we have per-word rates of 30 or 90 cents a word. I mean, is that fact so difficult to comprehend, people? God!

No fat, cigar-chomping capitalist pig is operating a clandestine freelancer hatchery on the outskirts Keswick in order to keep the industry fed with "budding new writers." Not at all. What keeps these publishers knee-deep in cheap and effective wordsmiths is the self-adoration characteristic writers. They're really a failed species in Darwinian terms. (Actually, a very useful species, in Darwian terms, at least from the publishers' point of view.) They "make a difference in this world" all right -- they make sure rates stay rock bottom by accepting rock-bottom remuneration. Don't blame the publishers for taking money left on the table; blame the writers who leave it there. So, for the love of God, stop with the righteous bellyaching already. You're killing me here. Interesting, I wonder if Mr. Hayes is prepared to strike for his inferior colleagues' "rights." Uh, didn't think so. After all, he's got a mortgage to pay like the rest of us, so to speak. He offers fine words as he must but, in the end, looks after himself only...just like, whoa!, a publisher. The hyprocrisy is delectable. I'll shut up now.

5:58 pm  
Blogger D. B. Scott said...

Your rather sour comment ignores the fact that the single biggest problem that editors have these days is not a superfluity of young hopefuls but a shortage of good, seasoned, one-draft writers. The reason why such writers are disappearing is that magazines don't treat them like valued suppliers but as commodities.

6:22 pm  
Anonymous Anonymous said...

Is there any legal validity in crossing out the unreasonable and unacceptable parts of this new contract?

6:37 pm  
Blogger D. B. Scott said...

Of course you can cross out and initial changes; the trick is to get Transcon to agree to them.

6:39 pm  
Anonymous David Hayes said...

Have to love those dyspeptic rants. So easy behind the shield of anonymity. (It is, after all, a choice. We can use our real names when posting on this blog.)

9:15 pm  
Anonymous Anonymous said...

I write less and less because the rates are low, some (not all) editors will trim your fee if they have to cut the story even marginally from assigned length, and the terms of contracts are insulting.

DB is correct that publishers do this because they can. Ownership of magazines has consolidated and Transcontinental, Rogers, Redwood (throwing custom pubs into the pudding) and some of the big trade publishers can prevent writers who won't sign their contracts from writing for any of their publications. Smaller publishers just coast along enjoying what the big ones have done for them -- eradicated writers' bargaining power.

Part of the problem is the internet, which has made everybody a writer and content (we don't write stories any more, just mag-fodder) cheap, cheap, cheap.

And yes, part of the problem is writers, who can't stand up to publishers individually, for all the reasons already mentioned, and collectively are disorganized and irresolute. But only part.

Thank you for including this item in your blog, DB. Maybe if more of us had the courage to call publishers on what they are doing, we could improve our lot.

And yeah -- I AM too chicken to sign this.

8:19 am  
Anonymous David Hayes said...

We live in fear. The original anonymous writer’s comment, infused as it was with frustration and pathos, is not hard to understand. It’s the sound of so many writers everywhere who feel crushed by the sheer weight of the pressure against them. The largest publishers in the country grinding forward with contracts that take more and more rights away, providing less income for services rendered. Individual writers, unrepresented and unorganized, understandably feeling both hopeless and helpless. It’s the sound of defeat that paralyzes action, whether collective or individual.

9:36 am  
Anonymous Anonymous said...

Does anyone know whether photographers and illustrators have been presented with a similar contract? Frankly, they're better organized than writers (and many are also repped by stock agencies) so they've been more able to fight off these rights grabs in the past. Just wondering if there's a lesson writers can learn from the photogs in all of this.

11:04 am  
Anonymous Anonymous said...

Anon 2 to anon 1: they are better protected.

Meanwhile, PWAC is horsing around running seminars for people who want to write brochures -- maybe it needs a mag-writers' branch to look at mag-specific problems.

Alternatively, what about band-wagoning with Canadian screenwriters' group (forget their name), which a couple of weeks ago announced it was bargaining for new copyright/royalty provisions, following the lead of U.S. screenwriters?

What we need is some clout.

You know, losing reprint/reuse/digital rights is adding insult to injury -- it wasn't a lot of money, but it made you feel like your work had (literally) residual value and you had some freedom of choice.

11:33 am  
Anonymous Anonymous said...

I've been doing this for a living (such as it is) for almost 20 years now. I've been in all the relevant national pubs, plus a few high-profile US mags. I've won awards. I've had an interesting life. But I'm not sure I can continue to do this any longer.

I'm looking for a way out.

1:17 pm  
Anonymous Anon bcz I still have a mortgage said...

My resume is much the same as yours and I've had days where I've had the same thought. Lately, a lot of days.

I had high hopes for the CFU, but it seems that the acronym should stand for C-effed-up--not a single thing of consequence has come out of it and I have doubts that anything will. CFU prez Michael O'Reilly seems a great guy, but it's been 3 years! And John Degan at PWAC--also a great guy--but PWAC appears to have zero clout in any of this since they've become focused on non-journalistic writers and have few members in the top ranks of magazine writing anyway.

So do we all head for the exits?

2:05 pm  
Anonymous Anonymous said...

I'm sorry to hear that, Anon 1. I've been doing it longer than you, and have also written (and edited) for all the big Canadian mags and some U.S. ones to boot. I'm trying to figure out how to keep going and make it better. Discouraging -- not only have rates not changed, but I feel like writers are valued a lot less by many editors now. Used to be they'd try to find ways to reward you for being reliable and doing a good job -- throw you a few extra bucks for a sbr, let the story run a little long if it was good. That still happens, but just as often I end up feeling nicked and unappreciated when I go the extra mile. I'm finding the papers are better to work for than many mags these days. To be fair, editors are overworked and underpaid too, for the most part.

3:09 pm  
Blogger John said...

I try not to engage with the anonymous on the Internet -- text has so much more authority when it is signed -- but I'll step in here briefly to point out a couple things about PWAC:

PWAC has grown over 50% in membership numbers in the last 5 years, and that has certainly not happened as a result of a non-journalistic focus. Our new members trend young and well-educated as journalists. That said, our writer survey report from a couple years back predicted an emergency for journalism in Canada if something isn't done, and soon, about bad contracts and rates. Good writers quitting the industry is bad for everyone.

Coming out of that report is PWAC's current Magazine Industry Task Force, the survey for which many readers of this blog filled in a while back. This summer D. B. Scott himself will be conducting one-on-one interviews with players in the industry (big and small) to fill out the profile, and we'll present that report (hopefully) soon after that. I know that's not immediate contract-fighting, but it's also not nothing.

I appreciate being considered a great guy, as does Mike I'm sure, but none of this is about either of us. It's about every other professional writer in Canada. PWAC had a big-time newspaper owner to dinner a few years back, and in front of a room full of freelancers he spelled it out. We pay you as poorly as we do, because we can -- because you don't force us to do differently.

It's absolutely not about profit margins on the net, or the real value of the content provided; it's about solidarity, organization and determination.

Historically, these three things are pretty hard to muster among freelancers because we are all essentially in competition with each other. Nevertheless, as slow as it may seem, there has been significant progress. PWAC's growth, the CFU, the existence of discussion like this and the same one going on at the TFEW list -- these are all good things.

4:14 pm  
Anonymous Anonymous said...

It's me, again, Anon 1 ("looking for a way out"). Generally, I don't blame the editors, although there are some who deserve to be blamed. As for the publishers, that's a different story. I do not give a flying f**k about their declining ad revenues, or increased distribution costs. I'm so far beyond that now. At this point, I don't even care all that much about the long-term viability of the Canadian magazine industry. It has poorly served Canada, and has treated its best practitioners like serfs.

The fact that this "business model" is actually underwritten by the Canadian taxpayer makes me sick. The very least that could be done would be to tie federal subsidies to increased per word rates. Aside from that, I don't see ant other gun to put to their heads.

Sorry, very frustrated.

4:53 pm  
Anonymous Anonymous said...

Anon 2 again, for John, I guess:

I'm not knocking the quality of PWAC's newer/younger members (BTW, though I'm older, I'm quite well educated too!)But I think PWAC's attention is all over the place -- just take a look at the website's home page.

Sure, we're disorganized and irresolute -- I said that a couple of posts ago.

But if PWAC saw this coming, was there anything to keep it from smearing that fact all over the website, sending speakers to every gathering of mag people going, talking to the papers and broadcast outlets, blogging and using whatever other means of communication available in order to flag the situation and give writers a consistent, strong and visible voice and position around which to rally? (longish sentence, hmmm, I need an editor now!)

OK, I'm glad you're doing something and I filled out the questionnaire. But it's all a little low-key for a crisis.

The average freelancer's annual earnings are well below the poverty line and we're being stripped of our intellectual property rights -- and we're doing next to nothing to publicise the situation.

Editors aren't much better off -- their wages are disgracefully low, given the skill level required, how hard most work and the fact that they are the only staff people absolutely essential to a magazine's existence. But they don't stick up for writers the way they used to because they work for big corporations and are either scared, too, or -- in some cases -- have been seduced by the culture.

I don't agree that the reason freelancers haven't shown more solidarity is that we're all in competition. That's true of every industry (and workplace), and many manage to organize anyway.

I think for many years the relationship between editors and writers was more sympathetic, and there was more loyalty and more of a sense that we were all in it together. That -- along with self-interest among those of us who were doing (relatively) well and the lack of a strong organization to rally around -- kept us complacent.

Now the once-cozy relationship between editors and writers has broken down. Meanwhile, publishers have gained power due to consolidation of ownership, and the financial situation has deteriorated to the point where it is intolerable.

So maybe we're finaly ready to organize and show some solidarity and resolution.

MAKE SOME NOISE, FER CRISSAKES!

Let people know PWAC is on the job, has a plan and is ready and willing to do more than collect information /

11:00 am  
Anonymous Anonymous said...

Anon 2 again, for John, I guess:

I'm not knocking the quality of PWAC's newer/younger members (BTW, though I'm older, I'm quite well educated too!)But I think PWAC's attention is all over the place -- just take a look at the website's home page.

Sure, we're disorganized and irresolute -- I said that a couple of posts ago.

But if PWAC saw this coming, was there anything to keep it from smearing that fact all over the website, sending speakers to every gathering of mag people going, talking to the papers and broadcast outlets, blogging and using whatever other means of communication available in order to flag the situation and give writers a consistent, strong and visible voice and position around which to rally? (longish sentence, hmmm, I need an editor now!)

OK, I'm glad you're doing something and I filled out the questionnaire. But it's all a little low-key for a crisis.

The average freelancer's annual earnings are well below the poverty line and we're being stripped of our intellectual property rights -- and we're doing next to nothing to publicise the situation.

Editors aren't much better off -- their wages are disgracefully low, given the skill level required, how hard most work and the fact that they are the only staff people absolutely essential to a magazine's existence. But they don't stick up for writers the way they used to because they work for big corporations and are either scared, too, or -- in some cases -- have been seduced by the culture.

I don't agree that the reason freelancers haven't shown more solidarity is that we're all in competition. That's true of every industry (and workplace), and many manage to organize anyway.

I think for many years the relationship between editors and writers was more sympathetic, and there was more loyalty and more of a sense that we were all in it together. That -- along with self-interest among those of us who were doing (relatively) well and the lack of a strong organization to rally around -- kept us complacent.

Now the once-cozy relationship between editors and writers has broken down. Meanwhile, publishers have gained power due to consolidation of ownership, and the financial situation has deteriorated to the point where it is intolerable.

So maybe we're finaly ready to organize and show some solidarity and resolution.

MAKE SOME NOISE, FER CRISSAKES!

Let people know PWAC is on the job, has a plan and is ready and willing to do more than collect information ,

This doesn't want to post -- I'm trying one more time and giving up. Sorry if you get multiples.

11:01 am  
Anonymous Anonymous said...

From one of the anonymous freelance writers: great that PWAC is doing a study, but agree with my colleague that studying isn't enough, especially when these contracts are being rammed down people's throats TODAY and once signed, it will be virtually impossible to roll the clock back to the "good old days" when we were just inadequately paid for first print and brand-specific web rights!

9:28 am  
Anonymous Anonymous said...

From a freelancer part 2:
Wouldn't this be a great time for PWAC to do a membership drive to all of those Transcon writers who might see a reason for joining if PWAC were to advocate on their behalf? And I don't agree with John's analysis that writers don't join because we compete with each other: run through the list of NMA winners and nominees this year and I'll bet you the vast majority are not PWAC members. Why haven't they joined? Because PWAC, in Toronto at least, has not been able to convince senior writers that it actually has something to offer them. Stepping up on the contract front might actually convince them otherwise.

9:32 am  
Anonymous Anonymous said...

Anon 2 for John, DB and Anon 1:

Let's also re-examine what "because they can" means. It's glib and smart, and makes it sound like it's because we freelance writers are such clueless, disorganized wussies.

Maybe that's somewhat true.

But they couldn't if the big publishers didn't own so many titles and their contracts didn't cover all of them. In other words, if you won't sign, you can't write for any of Transcon's mags.

And the contracts ARE rammed down our throats. I have several times been told casually by editors, mid-story, that I had to sign a new contract in order to be paid. (This happened at a national daily, as well as at magazines).

This is predatory behaviour, and it's stupid, because magazine publishers are alienating a vital resource.

And I don't think it's paranoid to believe that publishers are acting in concert in the sense that they watch and emulate each other. Not suggesting they conspire, but of course there's parallel action and collusion.

Masthead recently ran a story about a senior Transcontinental exec who's joined Rogers Media's board. They're probably more interested in talking tradeoffs in sectors where competition for ads is tough (would you be surprised by mergers of secondary titles?) than stiffing writers. Still, betcha Rogers saw Transcontinental's freelance contract before DB got hold of it.

BTW, I don't belong to PWAC now because it's expensive and lacks clout and direction. I'd be happy to join and to do some volunteer work for it if I thought it was going to take meaningful action.

But without dues to fund a strike, what leverage does PWAC really have? Then again, magazine writers make so little that strike pay would probably be about $30 a week, anyway....maybe what PWAC needs to do is run a seminar on applying for government benefits.

1:11 pm  
Anonymous Anonymous said...

Re: "I don't think it's paranoid to believe that publishers are acting in concert in the sense that they watch and emulate each other. Not suggesting they conspire, but of course there's parallel action and collusion."

They absolutely emulate each other. And sometimes feelers are put out to do more--I know that at least one senior publishing staffer at one of the big 3 put out feelers to people at the two others to "discuss" the possibility of a united front on contracts. The company I was working for rebuffed the suggestion. Don't know about the others.

2:52 pm  
Anonymous Anonymous said...

As a very small magazine that struggles, I do find this so depressing. We are definitely not paying top dollar (or even the going rate at the low end) for our writers, but we pay the most we can and continue to increase our fees each year. I hate that these publishers who CAN afford it are not wanting to do so.

4:19 pm  
Anonymous Anonymous said...

Anon 2: Maybe PWAC could make a list of publishers big and small who are predatory in their practices and whose contracts make a mockery of the principle of intellectual property rights -- and tell writers to boycott their magazines and only their magazines.

That would be useful.

7:33 pm  
Anonymous Anonymous said...

Re: "They [publishers] absolutely emulate each other. And sometimes feelers are put out to do more--I know that at least one senior publishing staffer at one of the big 3 put out feelers to people at the two others to "discuss" the possibility of a united front on contracts. The company I was working for rebuffed the suggestion. Don't know about the others."

Which one put out feelers? If you're nervous about replying, go to Kinkos to post.

10:36 pm  
Anonymous Anonymous said...

Humble apologies but this thread could easily be written in another decade.

This is 2008. Editors like myself can find excellent writers anywhere on the planet. Quite literally - hundreds of thousands of them. And worse, a writer can now write and research any topic, at any time, from anywhere. So while I used to have to hire someone in NYC to write about a new building in NYC, now I can hire an architect in Taipei, and send him a link to the building's site. Expertise, check. Cheap? You bet.

This concept is true for commissioning celebrity interviews, travel tales, adventure travel and just about everything else. Everything is easy and everyone is available.

Kodak no longer makes film and Polaroid no longer makes instant cameras. Business models change all the time. The publishing model has changed and as far as I can tell, it is not in favour of the local writer who wants a raise. It just isnt.

Sorry.

10:57 pm  
Anonymous Anonymous said...

To the editor offering "humble apologies": I guess it depends what kind of magazine you're publishing and what kind of content you want. If you're a mainstream Canadian consumer magazine that wants to include Canadian experts and "real people" in its service articles, or narrative-based pieces grounded in Canadian experiences and stories, contracting the writing out to Tapei isn't that simple. Although maybe Tapei-based editors could edit the pieces...

9:29 am  
Anonymous Anonymous said...

Anon 2 for humble apologies -- I have a referral for you. Google Don Lipper Custom Publishing in NYC.

I'm sure you can outsource all your writing needs to Lipper and his wife -- why go to Tapei for that story about NY architecture? (Which I doubt you've actually ever commissioned -- you probably edit Northern Truss or somesuch.)

Anyway, here's some of the sales copy from the website of this dazzling duo:

"WRITING
Choose one of our custom publishing topics (or create your own) and we’ll craft targeted, market-specific articles just for you. All you have to do is click a few boxes, and we’ll do the rest.

We can write in whatever voice you choose, with an angle designed to hook your readers.

We work 24/7. We have a team of researchers on the other side of the globe who will:

* Create trend data on the top keywords on the topic.
* Compile existing articles on the topic.
* Find experts on the topic, complete with contact information for quick interviewing.
* Perform message board audits of companies/topic areas to glean key issues.
* Transcribe the interviews overnight while America {and presumanbly Canada) sleeps.

While the background work is done overseas, we do all the interviewing and writing.
We can deliver ten 1,500-word articles a week, all written in the voice you want.

We’ve got hundreds of article templates that will work with each of the main topic areas. These templates make writing a flash but each article is 100% original. The details and the voices of the individuals interviewed make each article taste freshly squeezed."

By the way, we aren't beefing because we want a raise. If you were listening, you'd know we'd like a raise, but what we are angry about is the lack of respect for our talent, dedication and intellectual property rights from publishers -- but I guess editors are more culpable than I thought.

Hey -- what if you get downsized or axed for (clearly) being a smart-ass toad tomorrow? Or the Canadian writers you value so cheaply boycott Northern Truss, and you have to write the whole damn thing yourself because it turns out that mythical piece-worker in Tapei does substandard work?

I don't think you'll get much sympathy.

11:53 am  
Anonymous Anonymous said...

To the editor that responded: I think you're full of shit. You sound greener than new sod.

I'd love to know which "magazine" you're editing. I'd also like to know some of the alleged writers that make up your vast reserves of unlimited talent from around the globe, the outer reaches of the solar system and, no doubt, your fertile and fetid imagination.

Now, toddle on off to your little website.

12:46 pm  
Anonymous Anonymous said...

Anon 2:

OK, on re-reading my last post, I guess I'm a bit of a smart-ass too. But at least not the smarmy kind.

Some writers dislike me as an editor, but it's because I have high standards for copy -- not because I think I'm a superior life-form.

Your dismissive attitude is exactly what has writers all pissed off.

5:52 pm  

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