Whose Work Is It Anyway?
In my last column, I accused Salon of screwing its freelancers.
That's an opinion, but it's a fact that Salon recently mailed contracts to freelancers who never received contracts to begin with, asking them to give up resale rights to their published work in exchange for 25 percent of the resale fee. Salon managing editor Scott Rosenberg doesn't understand what all the fuss is about. Last week, he defended the so-called "catchup contract," calling it an "honest attempt to secure resale rights individuallywe make no claims to have the rights until a writer signsand to compensate writers for those rights."
But Rosenberg is having trouble explaining one case when Salon claimed to own something it did not. Last week, San Francisco writers Sam Witt and Sean Durkin told me Salon resold a story of theirs to The Vancouver Sun, without ever obtaining a contract from the writers. Witt and Durkin call it an "open-and-shut case of copyright infringement."
Also last week, Mediaweek columnist Catherine Seipp reported that Salon has sold stories by Susan Straight to the Los Angeles Times, but never paid reprint feesbecause the fees are "so small."
These complaints are part of a trend in which freelancers, long accorded no bargaining power, are stamping their feet for respect. In the wake of a court ruling known as Tasini v. The New York Times, several class action suits are pending this fall in which writers refuse to have their work resold without permission or adequate compensation. The targets are publishing conglomerates who have the best lawyers money can buy. But for many writers, the Tasini ruling has come to symbolize the right to pursue a creative life free of corporate strong-arming, and that passion will fuel this intifada for a long time to come.
The latest copyright claim to surface arose in 1998, when Witt and Durkin pitched a story to Salon about a doctor who planted an electrode in the brain of a stroke victim, enabling him to "talk" to a computer. Rosenberg assigned the piece, which Salon posted on November 23, 1998, under the headline "Thought-activated Computing."
Witt and Durkin didn't look at their contract until after the story went up. When they did, says Witt, "We didn't like what we saw." They showed the contract to San Francisco attorney Gregory Brod. "I advised them not to sign it," says Brod, partly because "Salon was asking them to sign away all their rights for a 25 percent cut."
The writers also didn't like a clause asking them to participate in a chat room for no extra pay. Rosenberg told them to scratch that clause, Witt says, but balked at raising the fee. Witt got the impression that "the time to sign the contract was past."
Meanwhile, the story was sold to The Vancouver Sun, which published it three days later. The writers were kept in the dark. When a friend called to congratulate them, Witt contacted Rosenberg. Witt recalls Rosenberg was "surprised" the story had sold so quickly and could not say how it had happened. "I said, 'Maybe you ought to talk to my lawyer,' " Witt recalls, whereupon Rosenberg gave him the name of a woman at Salon who knew about the syndication deal. Rosenberg advised him not to bring a lawyer into it, because the sums were so insignificant.
At first, the woman at Salon told Brod she didn't know what had happened, then later explained that a middleman had sold the story to the Sun. She thanked him for pursuing the matter, he recalls, because now she realized there were some writers for whom Salon did not have contracts, and others to whom they owed fees. Three months later, Salon sent Witt and Durkin a check in the amount of $16.30, labeled "reprint fee." They never cashed it, and never signed a contract.
Witt and Durkin have no intention of suing Salon. Indeed, they forgot about it until last week, when I reported on Salon's attempt to collect retroactive rights from freelancers. Says Witt, "Most editors are pretty lax about their contracts, and if there's a feeling of good faith, it doesn't matter as much. But if Salon has been selling people's work en masse without their permission, it looks like bad faith."
Rosenberg says that this is an isolated instance in which Salon sold content for which they don't own the rights, and that the catchup contract is a good-faith effort to avoid doing it again. "In this situation, we certainly made an error, however unintentionally," he says.
Asked how it happened, Rosenberg says, "Our then-syndication partner, United Media, blindsided us by reselling this article virtually overnight, before we had a contract." But United Media has no record of the sale, and it expects Salon to secure rights to stories it puts up for sale.
Don MacLachlan, a spokesman for The Vancouver Sun, says the paper has a direct deal with Salon that allows the Sun to reprint several stories a month, although the Sun might also have bought the story through United Media. He says there is an "implicit expectation" that Salon owns the rights to any content it sells to the Sun.
Since 1998, the Sun has reprinted several Salon stories, including at least 10 by Scott Rosenberg. Ironically, one of his pieces envisions a future in which copyright law falls by the wayside. Instead of trying to profit off corrupt distribution systems, he argues, artists should concentrate on forging direct relationships with their fans. Perhaps Salon should follow the same advice.
Forbes's Poetic Profits
It's axiomatic that you can't make money from a literary magazine. But don't tell that to the editors of the bimonthly Forbes ASAP, who spend a few months every year rounding up the best writers in the world and turning them loose on some incredibly trippy subject. "What Is True?" is the topic of this year's Big Issue, a labor of love that stays on the newsstands until November 8. They say it turns a profit. But how?
The Forbes brothers knew the Big Issue would be "something of a risk" when they launched it in 1996, says Forbes ASAP editor Michael Malone. But advertisers quickly responded to the chance to "be part of something memorable and important," and writers tend to "fall in love with the topic." It costs more than other issues, with some writers commanding as much as $15,000 in fees. But the ad-edit ratio is up to 53-47 this year, and Malone says the newsstand sell-through rate is equivalent to that of Harper's or The Atlantic.
It doesn't hurt that Forbes ASAP is sent free to all 860,000 Forbes subscribers, or that its bread and butter is technology coverage. But once a year, Malone sets his staff free to engage their favorite writers (William Vollmann! Tom Boyle!) in "long and intense editing sessions." Modeled after special issues of Esquire in the 1960s, the Big Issue is "the ultimate literary journal," says Malone. "We actually pay the writers money instead of copies of the magazine."
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