Galley Slaves
The National Writers Union Decries Unfair Contracts

by Doug Nufer
The Free Press


Here's the deal: after a few hours or weeks of trying to find an editor who expresses some interest in your idea, spend months of your life researching a topic and then cramming a 5000-word article into 2000 words, for which you'll be paid when or if they get around to running it (and, be expected to finance your own defense if anyone thinks you slandered him). What's in it for you? Credit, satisfaction, a stake in the future of your own career based on the possibility that someday, somehow this will amount to more than a few weeks and months of wasted sweat. Sell your copyright? Why not just sell your soul?
Such is the lot of the freelance writer: low pay, high expenses, no job security, marginal respect, and now, the growing likelihood of being forced to part with control of the work. Traditionally, all rights revert to the freelancer after work first appears. With the advent of web sites, on-line magazines, and storage databases, published articles that used to be filed in stacks of rotting newsprint have found secondary markets of untold promise. As a result, print media publishers have pressed for changes in their standard agreements with freelancers, changes aimed at controlling who gets to cash in on reuse of the work.
In December, 1993, Jonathan Tasini and ten other freelance writers took steps to block the trend of publishers bullying writers to sign away their functional souls. They sued the New York Times and five other publishers over electronic reproduction rights after their work appeared on databases without their consent. In Seattle recently, Tasini said the suit should be decided within months if not weeks.
"They are going to deal with us because they have no choice - not because they like us," he says, considering the dynamics of power that characterize the relationship between writer and publisher.
Tasini is president of the National Writers Union (NWU), a labor union for freelance writers geared to helping them cope with the business of being an independent contractor on the seller's side of a buyer's market. While TASINI VS. TIMES may someday resolve a problem critical to writers, publishers, and readers, electronic reproduction is just part of the larger issue of creators' rights.
"They are going to deal
with us because they have
no choice -- not because
they like us."
Take kill fees. Some publishers pay only a 25-50% chunk of a writer's fee if they decide not to use the article. The NWU opposes this, arguing that the publisher should pay the full fee for all commissioned work. While contractors in other lines of work may find this practice ridiculous, freelance writers making handshake contracts with Seattle's newspapers typically earn kill fees that amount to 100% of zero.
Why, then, are many writers reluctant to join?
"People don't want to join unions because 1) they're stuck into thinking unions are a thing of the past, and 2) fear," he says.
"Because they're stupid," a woman overhearing us adds.
Affiliated with the United Auto Workers, the NWU has 4,500 members in 14 locals around the country. Fiction and nonfiction writers, trade book and text book authors, children's authors, technical writers, cartoonists, poets, electronic writers, and the freelance authors of corporate histories are encouraged to join (to reach the Seattle local, call 556-4855).
Meanwhile, editors pester contributors with contracts claiming everything from the publisher's ownership of the creator's work to a mere perpetual right to reproduce indefinitely for free anything the publisher prints. And, print publishers cut deals with on-line magazines and reprint services, offering a steady supply of content which they warrant they own by virtue of having printed the work first.
Compared to contracts "offered" by the Chicago Tribune, Portland Oregonian, and Boston Globe, which seize the copyright, the Seattle Times letter to freelancers sent out around the first of the year seems benign. Writers keep their copyrights and get to republish their own work, but the paper also gets to reprint their work, whenever and as often as it wants, for free. As in other cities, long-time contributors who complain often hear, "Oh, this doesn't apply to you- just to new writers." Rather than an ironclad demand, these contracts function as starting points for negotiation.
At the Post-Intelligencer, freelancers make individual arrangements with editors. One of the two writers I contacted had been asked (but not pressed) to sign a new contract and neither of them reported selling more than first print rights. At both the Stranger and the Free Press, all rights revert to contributors after publication, as they do in arrangements Seattle Weekly makes with most of its freelance writers.
Before announcing an agreement to feed listings and capsule reviews from its Goings On section to Microsoft's Seattle Sidewalk on-line magazine, Seatle Weekly had some of its non-staff contributors sign contracts that gave Quickfish (the Weekly and Eastsideweek) exclusive electronic rights to their work for a year. In an agreement Weekly publisher David Brewster says is adapted from the standard NWU journalism contract, these writers get an extra 15% of their fee in exchange for this right. After a year both sides may renegotiate, but the contract states, "Writer agrees that such Material may be archived and stored by an online service; such Material may have in [sic.] indefinite, extended life, for which Writer will receive no further compensation." The NWU recommends a payment of 15% of the print rights fee per electronic use.
Print publishers that control contributors' work have an obvious pervasive advantage when dealing with on-line services; less obvious but no less pervasive is the application of the new publishing market strategies to an area that's erroneously thought to be above the muck of capitalist exploitation: "alternative" journalism. Recently AlterNet, a wire service specializing in resale of articles to non-daily newspapers, sent the Free Press an electronic publishing agreement form asking us to claim that we own all rights, including copyrights, of the works we publish. We make no such claim. Stranger editor Emily White advises AlterNet to deal directly with the writer when they call for permission to reprint. Neither the Stranger nor Weekly have signed that agreement with AlterNet, and Brewster says that all money AlterNet pays them for any reprint of a Weekly article goes to the writer.
Meanwhile, the NWU has been talking with AlterNet to get them to sign up with the Publishing Rights Clearinghouse (PRC), who would license (not give away) reprint rights to AlterNet which the union would collect on behalf of writers. NWU members and nonmembers can have the PRC track down renegade electronic reuses of their articles (call 206/556-4855 and leave message for Carmen Miller, or e-mail: clmiller@med.com).
The Village Voice displayed a more spectacular example of hypocrisy last December when it forced freelancers to abide by a contract that would take all of their rights. The market-wise New York weekly, known for its strong pro-labor editorial content, also made freelance writers assume sole libel responsibility and scrapped a work agreement that set limits on rewrites and the time an editor could take to respond to a solicited submission. Freelance writers and photographers must split resale profits with the Voice.
Not that any of these issues are new or revolutionary. A few decades ago a freelancer for the New York Herald wrote in a letter to London, "Better a galley slave in Turkey than a freelance writer in America." His name, Karl Marx.
Picketers take to the streets outside the Fifth Avenue Theater
photo by Karen Johanson

Pinkertons Take the Fifth

The 5th Avenue Theater enjoys the second largest subscription base of any theater in the U.S., which possibly explains how it could afford to spend a tidy fortune to replace fifteen striking members of its orchestra for the Seattle production of Beauty and the Beast. While Pinkerton guards provided security for the scabs, whose names went unlisted in the program, Seattle's daily newspapers referred to management's offer of $96/show as a raise from the old rate of $93/show. For balance, some papers reported the union's "contention" that pay cuts to principle musicians and to musicians who play more than one instrument more than offset this "raise."

What you may not have read in newspapers that take Fifth Avenue Theater advertising follows:
With the Fifth Avenue Musicians contract due to expire at the end of 1996, the American Federation of Musicians (AFM) Seattle Local 76-493 studied what theater musicians make across the country, then adjusted for cost of living. The twelve cities studied paid each of their musicians an average of $88-$123 per show, in Seattle dollars. Under the expiring contract, Seattle musicians got $93/show, putting them second from the bottom.
The whole orchestra for Beauty and the Beast would end up making $64 less per show, if the musicians agreed to management's proposal. The union's demand of $106/show would give the whole orchestra $229/show more than the expiring contract gave.
In other words, the amount of money in wages is nothing compared to the money management spent on hiring replacements. Part of the costs include flying in musicians from out of town, providing them with food, shelter, and bodyguards in addition to paying them a rate management says is commensurate to what they offered the strikers. Another part includes hiring Larry Levien, the lawyer who represented Frank Lorenzo against the workers of Eastern Airlines in negotiations that ultimately killed the airline.
"We believe that if we don't do this, the next one is going to be much, much harder," says violist Doug Solowan.
Frank Young was the first executive director to mount big shows at the Fifth Ave. Theater, combining local talent with star attractions from elsewhere. In support of Young's effort to bring the best traveling shows to Seattle, the musicians have worked for less than scale for about eight years. For them, management's refusal to pay even an average wage now that the theater was successful is a betrayal of trust and an insult.
Road performances account for 66 percent of the revenue on a successful Broadway musical, according to Mark Heter at the national office of the AFM. With over 120 theaters providing venues, five-year runs are typical, compared to the average tour of 14 months thirty years ago.
"They're kind of a cash cow," Heter says.
The Pinkertons, meanwhile, couldn't comment on the specific duties of the guards. They could only confirm that they are on the job.
Patrons may get refunds of their $20-$65 tickets by calling the box office, 625-1900.

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Contents on this page were published in the March/April, 1997 edition of the Washington Free Press.
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