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David Wallis, who runs a syndication service called Featurewell.com, calls the move a "transparent rights grab." Given that Salon relies on the goodwill of its writers, Wallis says it's a "bad business decision" to be "greedy and cheap." "The contract reminds me of the Publishers Clearing House mailing that says, 'Congratulations, you are already a winner!' "
National Writers Union president Jonathan Tasini calls the cover letter "underhanded and sleazy," because it doesn't explain Salon's motivation. He sees the contract as a response to Tasini v. The New York Times, a landmark decision that says publishers must get permission from freelancers before reselling electronic rights to their work. Because many freelancers retain copyrights, Tasini believes Salon has recognized a potential liability. "These retroactive agreements are increasingly common," he says. "Publishers are trying to go back and clean up their act."
Last spring, The Boston Globe sent a similar contract to freelancers, asking them for retroactive electronic rights in perpetuity without any additional fee. The Globe informed contributors that if they did not sign the contract, they would never work for the paper againjust enough ammunition for a group of writers and photographers to file a class-action suit. A hearing on that case takes place in Boston on October 26.
Salon managing editor Scott Rosenberg answered questions by e-mail last week. He says Salon is trying to raise revenues "from the resale or relicensing of our content." For example, Salon would like to syndicate content to Lexis-Nexis. The purpose of this contract is "to make sure that we do not resell any piece of content that we don't specifically have the right to resell."
In the past, Rosenberg says, Salon editors have "sometimes neglected" to send contracts, and as a result, Salon needs to plug certain "gaps in our contract records." He would not say how many gaps exist, and declined to produce the standard contract. But he stressed that resale is a win-win situation that will benefit Salon as well as "every writer whose work is resold." Asked if there are cases in which Salon has sold electronic rights to freelancers' work without permission, he says, "None that we're aware of."
The question remains: How much should freelancers be paid for their resale rights? Salon's catchup contract gives writers the right to resell their work in TV, film, video, book, or audio form, and keep the profits. Rosenberg says that Salon's power to resell or license electronic rights is addressed in Clause 2, though the clause strikes some as vague. In exchange, Salon offers writers 25 percent of their share of the net proceeds, which Rosenberg says will be paid within a "reasonable period" after the close of the deal. The company also retains newspaper syndication rights, for which it pays writers nothing at all.
"How generous," says Wallis, who calls Salon's 25 percent of the net "a stingy offer for an organization that hypes itself as supporting the ideas of independent journalists." Publishers commonly offer 25 percent of the gross, and writers whose work is syndicated by Featurewell.com are paid 60 percent of the gross. That may be why Wallis has attracted 140 writers so far, including Eric Alterman and David Margolick.
Tasini advises Salon freelancers to try to negotiate new terms. For example, ask for a minimal fee up front for electronic rights, and don't give up any right in perpetuity. But is Salon open to negotiation?
"Depends on how you define 'open,' I guess," jokes Rosenberg. "We want to maximize the number of articles we can resell. . . . But we don't want to end up with a bookkeeping nightmare of dozens of individualized contracts."
Rosenberg insists that the catchup contract has "nothing to do with" the Tasini ruling, which he claims applies only to print publications. "Salon isn't the Globe or the Times," he says. "We're not trying to corral a bunch of writers who agreed to have their stories in print into signing away their electronic rights. Everyone who writes for us knows they were dealing with electronic rights all along.
"Salon isn't out to screw anyone," he says in parting. "Instead, we're trying to do the right thing and sign up those writers who we failed to get contracts in the first place. You're free to sign or not. If you don't like the terms, you don't sign, we don't resell, and that's that."
U.S. News & World Report has hired 33-year-old Masha Gessen to be its Moscow bureau chief. Gessen, the progeny of a long line of Russian writers, emigrated with her family to Boston in 1981 and returned to the homeland in 1994. A contributor to The New Republic and an "out" Jewish lesbian, she has been writing for the liberal newsweekly Itogi since 1996.