"What do I say to my editor?"
"How do I negotiate these rights?"
"Do I have to sign their contract or do I have any alternatives?"
"How much money should I be asking for these rights?"

Though facts about costs, profits, and procedures in the electronic market are hard to come by, the NWU's Standard Journalism Contract spells out what we believe is a fair and equitable rights arrangement, and we urge writers to use it whenever possible. However, you may find yourself negotiating from a contract from your publisher. We're finding that writers can often make substantial changes in these contracts before they sign them, and we offer the following guidelines to help you negotiate your electronic rights.

Some Definitions

Publishers' contracts have become increasingly complicated and come in endless permutations. The thickets of legal language may be difficult to wade through, but two important terms should raise red flags for the freelancer:

Work-made-for-hire
A "work-made-for-hire" contract means that the magazine owns the entire copyright to your work, automatically, from the moment you create it. No transfer of copyright is necessary because, legally, the author never owns any rights. Although work-made-for-hire contracts are often used and are usually acceptable for non-journalistic writing (corporate, non-profit, advertising, etc.), they are not the industry standard for magazine journalism. This is in part because it's not clear that a contribution to a magazine fits one of the specific legal definitions of a work-made- for-hire. The NWU strongly urges freelance journalists not to relinquish their copyright by signing work-made-for-hire agreements unless they receive considerable additional compensation.

All rights
An "all rights" contract essentially accomplishes by assignment of rights what a work-made-for-hire would accomplish automatically. It asks you to sign over to the publisher electronic, second serial, syndication, and a host of other rights. However, "all rights" contracts are often not labeled as such. They usually begin innocently enough by asking for "First North American serial rights," but then
amend a list of additional rights, known in the industry as "subsidiary rights." Delete any clauses that ask for "exclusive rights to record, transmit or reproduce" the article "by any means, electronic or otherwise." Another word to look out for is "anthologize," which often refers to electronic anthologies. Cross out any phrases like "in any form" or "in all of its forms" or in "any manner of media not yet known" or "invented" or "created" or "discovered." All such phrases should be replaced by the sentence: "All rights not expressly transferred are reserved and must be negotiated separately by the author."

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Negotiating Strategies

The framework for all your negotiations is your relationship with the publication. Your negotiating stance might be governed by whether you're a first-time writer or a frequent contributor. That said, even a first- timer should question a contract. Remember that many publications initially offer an all-rights contract as a matter of course, but are prepared to change that to buying only first North American print rights if you insist. So your first response should always be a polite rejection stated positively: "I'm excited about the prospect of these new electronic
markets, but I always retain my copyright. However, I'd be happy to negotiate any other rights separately." Explain to your editor which sections of the contract you'd like to cross out and what language you want to substitute.

If the publisher insists on taking electronic rights, here are some negotiating strategies:

Try to get the publisher to define specifically what electronic rights they want. Most magazine publishers are only interested in on- line and database rights. If the publisher is asking for CD-ROM or other interactive rights, you should definitely try to get different contract language and additional payment. See the NWU's "Recommended Electronic Rights Policy" for suggested fees. You can also call the NWU for consultation.

Try to limit the duration of their license for electronic rights. Some publications will only want those rights for 6O or 9O days. If you can, limit their license to a year, after which the rights revert to you.

Try to make their rights non-exclusive, giving both you and the publisher the opportunity to sell the rights elsewhere. But remember that the publisher is usually in a better position to exploit subsidiary rights than you are, so whenever possible try to get them to pay you for each set of additional rights.

Ask for an additional fee for each additional set of rights. For publication on a World Wide Web site, the NWU suggests a level commensurate with first print rights. For other electronic rights, the NWU suggests between 30 and 50 percent of the first print rights fee for use of the writer's work in a single electronic outlet.(For further information, see the "Recommended Electronic Rights Policy".

Explain that they will be profiting from the piece's use on a web site or in a database and it's only fair for you to share in the revenues from exploitation of these additional rights. Their response may be that the amounts involved are "too small to matter," or that their electronic ventures are "losing money." You can point out that writers should not be asked to provide their work for free to bankroll speculative electronic ventures. Even if the sum the publisher finally agrees to is small, be sure to have it explicitly spelled out in your contract. This will establish the principle that they're buying additional rights not included in your regular fee.

The publisher may insist on offering you some kind of royalty split. Since you have no way of knowing whether the publisher's accounting of royalties is accurate, a flat fee is a much better option for now. If you must accept a royalty split, try to get the highest percentage you can. At the very least, you shouldn't get less than 5O%, the standard split for syndication rights.

If ever there was a time for solidarity among writers, folks, this is it. There's little question that if every freelancer insisted on retaining his or her rights, the publishing industry would have to rethink these contracts. The way publishers pay us, practically the only thing we have as freelancers is the ownership of our work -- a right we should never undervalue. We urge writers to stand firm on the copyright issue whenever possible.