Sunday, June 14, 2009

Freelancers dismayed by Transcon's new "take it or leave it" freelance contract

When Transcontinental Media, Canada's largest producer of consumer magazines, rolls out a revised freeelance contract, it is news. Freelancers pay attention: those who already work for one of Transcon's large magazines like Canadian Living, More, Homemakers, Outdoor Canada and Hockey News; and those who hope to. [Copy of the contract form dowloadable here]

That's why there is so much, justifiable, dismay that the company's new contract so aggressively demonstrates the imbalance of clout between the independent small businesses who supply that content and a large, multinational corporation.

Of course, Transcon might say that freelancers have an option -- they don't have to sign the agreement. But clearly this is unrealistic, particularly for long-established freelancers who have developed a good working relationship with Transcon titles.

A similar, but somewhat less demanding contract was unveiled a year ago: it reserved the right to republish any article within two years and gave the company exclusive rights on an article for 12 months. It also contained a provision 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."

Now, say freelancers, this revised contract, dated June 2009, is shorter, not containing those provisions, but is even more sweeping in controlling writers' work. And there is no indication that base fees will increase to reflect the changes.

The shame of it is that Transcon is essentially not negotiating supplier fees and conditions, but dictating them. For the freelance writers it is a matter of take it or leave it. If they don't sign the master agreement, which applies to all magazines, they won't be able to work with any Transcon publications:
The Publisher’s accounting department will not process payment for your Work(s) unless your invoice is preceded by a signed Master Agreement. Should your invoice conflict with this Master Agreement, the terms of this Master Agreement will prevail.
The new contract does makes some provision for small additional fees for some uses -- 10% of the basic fee if the work is translated; 10% if the work is published in a special issue; 10% if the work is included in a paper format book; 15% if the work is published in another Transcon-branded product.

But the operative clause is a significant rights grab that, in effect, indentures the writer and their work to Transcon. Here, under the heading "Rights granted" is the wording:
1. In consideration of the basic fee agreed upon at the time each Work is commissioned and subject to Section 3 (Additional Fees) where applicable, you grant to the Publisher the following rights in association with a Brand:

1.1 the right to first publication of the Work and subsequent ongoing non-exclusive right to publish the Work;

1.2 the ongoing non-exclusive right to do in respect of the Work any other act that is subject to copyright protection under the Canadian Copyright Act (including, without limitation, the right to produce and reproduce, translate, develop ancillary products, perform in public, adapt and communicate the Work, in any form or medium) as well as to authorize others to do so on behalf of or in association with the Publisher;

1.3 the ongoing non-exclusive right to edit and otherwise reasonably modify the Work.

2. You acknowledge that all rights granted herein are applicable to all media (including, without limitation, all digital and electronic media now known or hereafter created) and also includes the Publisher’s ongoing non-exclusive right to archive the Work (including in digital databases and abstracting/indexing services) and to make the archived Work available to the public, either directly by the Publisher or through third parties.
Despite the nod to the copyright act, the contract makes a nonsense of creators' rights and makes second rights a non sequitur. What client would pay for second rights on an article if Transcon retained the (albeit "non-exclusive") right to republish the article in virtually any form or publication at any time? And the writer is effectively delegating to Transcon the right to change their article in any which way.
"It's like asking me to build you a house, renting it for month and then saying, okay go ahead and rent it to someone else, but I want the right to pop back in whenever I feel like--and I might redecorate or move some walls," said writer Kim Pittaway.
Derek Finkle, who recently launched the Canadian Writers Group agency to represent, among others, freelance magazine writers, told Masthead:
"I don't understand why companies that sell their products on multiple platforms for a fee think writers should be giving away usage in multiple formats for free," Derek Finkle, founder and principal of CWG.

The contract, Finkle says, muddies the copyright waters, which could spoil an author's potential to score a book or film deal based on something written for a Transcontinental magazine or website. Even worse, he says, "theoretically, Transcontinental could sell TV or film rights and the writer wouldn't see a dime."
The Professional Writers of Canada (PWAC) is expected to have a formal statement about the contract soon. Whether protests will deflect the company or cause it to reconsider a document that essentially turns its private contractors into serfs remains to be seen. What puzzles many in the industry is what is driving this? In other words, what's wrong with the current system of rights and payments?

Perhaps inadvertently, Transcon has shone a light one of the many reasons why some of Canada's most experienced freelancers have signed with Derek Finkle's new agency.


Anonymous Anonymous said...

"Master" agreement, indeed.

What a delicious irony. If it didn't so accurately reflect the state of the industry, it could almost be funny...

1:23 pm  
Anonymous Anonymous said...

Freelancer's need to boycott Transcon and make it clear to Transcon's editors and publishers that they will not work for them under such grotesquely unfair conditions. Other companies are watching and if freelancers roll over on this, it will set a precedent that could be repeated across the industry. For your own good, refuse to sign this contract. There is absolutely no benefit to signing it.

2:01 pm  
Anonymous Anonymous said...

You're right, of course, but for many of us your prescriptions aren't as easy to swallow as you seem to think. I write for Transcon mags at least on a monthly basis; the company represents a very important part of my "business," such as it is. I suspect that you have less at stake in boycotting Transcon than do I, and that your bravado stems from this.

I loathe what they're trying to do with this contract, but for what it's worth, this is the first time I've seen it, so in practical terms nobody's shoved anything down my throat quite yet. If and when that happens, I'll raise my objections. I've danced this dance before, and have yet to sign an agreement that hogtied me in any way.

But I agree that the mere fact that it is being floated at all is worrisome. An(other) unfortunate sign of the times.

2:34 pm  
Anonymous Anonymous said...

This is the most worrisome (read the last clause about the right to authorize others to do acts that violate Canadian copyright protection):

1.2 the ongoing non-exclusive right to do in respect of the Work any other act that is subject to copyright protection under the Canadian Copyright Act (including, without limitation, the right to produce and reproduce, translate, develop ancillary products, perform in public, adapt and communicate the Work, in any form or medium) as well as to authorize others to do so on behalf of or in association with the Publisher;

Clearly, the lawyers have got hold of this and gone to town.

Thanks for taking a stand on this, D.B.

You did a great job with Respect and Remuneration, too.

3:44 pm  
Anonymous Anonymous said...

Has anyone yet been asked to sign this contract? Or was it leaked, D.B.? Please chime in.

5:09 pm  
Blogger D. B. Scott said...

What I will say is that it was forwarded to me by a freelancer, so presumably it had been sent to them for their signature. I understand that it is accompanied by a cover letter from Jacqueline Howe, the vice-president and group publisher for Transcontinental Media. I have not seen a copy of that letter.

5:34 pm  
Anonymous Ann Douglas said...

Kudos to Kim and Derek for taking a stand against this contract. It is one of the worst I've seen during my 20 years in the industry.

11:16 pm  
Anonymous Kim Pittaway said...

I have been told by a Transcon editor that unless I sign the agreement, her hands are tied and she cannot assign work to me, so all discussions of new assignments are on hold until I either sign or there is a corporate decision allowing my editor to move forward. I was told that the letter from Howe was on its way to me last week. I have not yet received it.

9:40 am  
Anonymous Anonymous said...

Interesting. I wonder what they'll do when columnists decide to opt out.

12:50 pm  
Anonymous Ann Douglas said...

That's so frustrating, Kim. (I have been there and walked away from bad contracts many, many times.)

Just to add to a comment from a previous commenter:

Signing a bad contract doesn't just set a bad contract for the industry and for other writers, by the way. It teaches you to undervalue yourself. Once you've settled for less-than-professional working conditions in one contract, it's easier to do so the next time. And so on. And so on.

I think we should all be asking ourselves one key question:

How much worse do we want the publishing industry to get in terms of its treatment of writers)? I think it's pretty close to hitting rock bottom.

I refuse to be party to any contract that will sell myself or any other writer short.

I would rather hire myself to work on projects that matter to me than to sign a draconian contract that represents even more giant steps backwards for writers.

There are still a number of publishers who recognize and value the skills that professional writers bring to the table; and who are willing to compensate their writers accordingly. Writers are very generous about sharing information about these markets with other writers. There are also a number of writers' groups that keep their writers informed about the best markets for writers.

* * * * *

I know you already know everything I've said in this message, Kim. I guess I'm directing my comments to the anonymous freelancer who happens upon this post as well as indulging in a little blog therapy, via the comments section. :-)

- Ann

1:17 pm  
Blogger Gordon Graham said...

Yeah, it's bad... but this is just the latest salvo in a long war on freelancers by publishers and their attack-dog lawyers. And it's the reason I stopped writing for dipstick magazines about 15 years ago. Sure, boycott this contract... and meanwhile, look for another source of income from people who treat you with at least a piddle of respect.

5:15 pm  
Anonymous Anonymous said...

Ann, are your comments are directed to me? The anonymous freelancer whose relationship with Transcon is ongoing and who would exercise prudent judgement before exploding all bridges?

If so, you should read what I wrote. I explicitly stated that, in my professional career, I had encountered bad contracts many times and had refused to sign any of them. I won't be doing it now.

And let's be clear: working for $1 a word -- which, for many freelancers, is the going rate in Canada, and which, I suspect, is what you either bill or aspire to bill -- is something that devalues us all. Arguably, much more than a naked rights grab ever could. So as for selling all of us short... many of us, perhaps including you, are complicit.

10:55 pm  
Anonymous Ann Douglas said...

Hi Anonymous Commenter 12 (the one whose comments are right below my comment) -

No, my comment wasn't directed to you AT ALL. (I just re-read my comment and realized how my comment could be read as if it were directed at one of the five original anonymous commenters - as opposed to ANY FUTURE COMMENTER who might happen upon this blog and choose to comment anonymously -- because it's difficult to attach your name to your comments in a forum such as this one.) I apologize for not making my comment clearer.

In response to the second part of your comment, there simply aren't a lot of Canadian magazine markets that pay in excess of $1/word. Any time I've been paid over $1/word for magazine or online writing, it's either been by a US-based media outlet or it's been for a Canadian magalog-style magazine.

As for per-word rates: I tend to look at the length of time it's going to take me to complete a particular job and the dollars being offered for that job when I'm deciding whether I can afford to accept a particular writing assignment. That makes more sense than getting too hung up on the per word rate.

What I do take very seriously, however, are the subsidiary rights issues, for two reasons.

1. Publishers are looking for new ways to repurpose their backlist of content. At MagNet'09, I sat in on a session in which publishers were advised to slice-and-dice all the articles in their backlists in new and exciting ways to produce new (and free!) content. Think about what that means, writers! Each time one of these hybrid articles gets produced (combining a tip from my article and a tip from your article and a tip from 8 other freelancers' articles to produce a brand new feature), one less article is assigned to a freelancer. So don't be too free and easy about giving those rights away or you'll be giving away your ability to earn a living in the months and years to come.

2. I know how much these rights can be worth - and how much a writer stands to lose, if there is even a millimeter of perceived wiggle room in a contract:

EXAMPLE, drawn from personal experience:

A major health website is interested in licensing $10,000 worth of material from one of my books. I bring bring business to book publisher. Contract says 50% of royalties go to author; 50% to publisher. Everything works out just fine.

Situation repeats itself a year or two later. Same health website wishes to license book excerpts from same publisher for use on same website. I bring business to publisher again. This time publisher argues that online book excerpts should be treated as an e-book and licensed at much lower rate. Instead of getting $5000 of $10,000 rights payment, I will get $125. Agent says this is unreasonable/outrageous/immoral. Publisher backs off. Agrees to 50% as per contract this time and this time only. Says future online book excerpts will be treated as e-books.

I have chosen to speak out because I feel that these kinds of abuses (yes, abuses) will continue while writers remain silent.

Enough is enough.

10:33 pm  
Anonymous Deborah Jones said...

You wrote, "Transcon has shone a light one of the many reasons why some of Canada's most experienced freelancers have signed with Derek Finkle's new agency."

Transcon's contract also shines a light on one of the many reasons many experienced freelancers have signed off Canadian journalism -- which is often akin to serfdom. But the real shame is that we're unable to unite and stand together in any coherent way to improve things. There's a long line up of writers ready to undercut those who refuse to take low pay or sign abusive contracts. I'm not convinced Derek Finkle's new agency can make a difference.

6:16 pm  
Anonymous Anonymous said...

Just received the "contract" -- more like an ultimatum, really.

I'll discuss with my editors next week. But maybe it's a blessing in disguise. After nearly two decades, perhaps it's simply time to move on.

4:45 pm  

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