 
 As of 1/3/94IT'S TIME TO GET MILITANT
 
 Note: This reprint is for information purposes only. It does not
 necessarily express "Smoke and Mirrors" position on any views
 expressed in the article.

               [[[The following is an editorial from the
               September issue of the marketing and management
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               Court Street, Suite 77, Brooklyn, NY 11231).
               Permission to reprint or quote liberarally from it
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    Since this was written, the National Writers Union filed suit for
    copyright infringement against the following: The New York Times
    Company; Newsday, a subsidiary of Times-Mirror; Time Inc.  Magazine
    Company, a subsidiary of Time Warner; Mead Data Central Corp., which
    operates the Nexis and Lexis online databases; and University
    Microfilms International, producers of CD-ROMs and a division of
    Bell & Howell.
    
    By Judith Broadhurst, Editor & Publisher of "Freelance Success"
    Broadhurst is also a member of ASJA, NWU , EFA and former sysop of
    the Freelancers Section in the Journalism Forum on CompuServe.
    
    It's time to close ranks or, as one editor put it bluntly, "get
    militant." Look at the facts:
    
       * There's a rumor afoot that Conde Nast and Time Inc.  Ventures
    just switched to all-rights contracts.  Our sources say no word has
    come down from on high to that effect, yet we know writers who've
    recently received either all-rights contracts from magazines in each
    of those groups or ones that use "nonexclusive right" in a way
    that's misleading, because it's followed by "to anthologize the
    Work, and to distribute throughout the world the issue, in all of
    its forms...until 90 days after the publication of the Work." Read:
    you effectively forfeit any value of electronic rights and blow most
    chances for resales.
    
       * Fewer of Time's magazines use freelancers, but Conde Nast is
    the major magazine publisher, so whatever they do is likely to have
    a domino effect.  They own Adventure Road, Allure, Architectural
    Digest, Bon Appetit, Bride's & Your New Home, Conde Nast Traveler,
    GQ, Glamour, Self, Gourmet, Mademoiselle, Vanity Fair and Vogue,
    among others.  Time's roster includes Entertainment Weekly, Fortune,
    Life, Martha Stewart Living, Money, Money Platinum, People Weekly,
    Sports Illustrated, SI for Kids, Time and Vibe.
    
       * The new standard contract clause for many national magazines is
    more doublespeak: "Author shall own and retain copyright in the
    Work.  Author, as owner of the Work, hereby grants to Publisher and
    Publisher hereby accepts, for the full term of copyright of the
    Work, the right throughout the world and without further
    compensation to Author to use and exploit the Work in any format or
    version and in any language, including, without limitation,
    publication in whole or in part in magazines, newsletters,
    anthologies, reprints, promotions, audio or video recordings,
    reference works, and electronic or computer-based information
    services, by any means and in any media, whether now known or
    hereafter developed." At least "exploit" is honest.
    
       Writers, photographers and graphic artists are being raped,
    pillaged and plundered with the frenzy among media titans to get
    their share of tolls on the Electronic Super Highway.  And very few
    of us are even putting up a struggle.
    
       Remember the story about Phil Perry, in our March issue, who
    makes 90% of his income from resales?  Or remember Louis Bignami's
    piece on how he resells seasonal stories each year?  At last count,
    Louis had resold his piece on how to paddle a canoe 37 times,
    worldwide.  What if Phil and Louis had signed away all their rights?
    
       Editors are usually pretty right-thinking souls.  It's the
    publishers whose bank accounts are at stake, and the editors' jobs
    are so insecure that few can afford to go to bat for us anymore.
    
       The writers' associations we join to give us leverage and clout
    are barely beginning to fight back.  Worse, they're fighting among
    themselves more than anything else, as though it really makes
    diddley difference who leads the charge as long everybody joins the
    battle and works together.
    
       National Writers Union committees have been drafting polemics
    about this problem for well over a year.  They're even preparing a
    lawsuit against several major publishers for alleged (who are we
    kidding?) violations of electronic copyright.  They've lined up 9 or
    10 writers willing to put their livelihoods on the line as
    plaintiffs, and hope to finally file the suit this month.
    
       The Author's Guild and the American Society of Journalists and
    Authors just released a joint position paper declaring that
    appropriation of our work without our written permission is a Bad
    Thing.  There were no temblors in the Manhattan publishing empire as
    a result of this proclamation.
    
       Even among writers NWU's planned lawsuit is understandably
    controversial.  NWU's drive to bring ASJA, the Guild and other
    groups together on their Declaration of Writer's Rights last year
    generated animosity all around, so their attempt to enlist others in
    their New Media Campaign has flopped so far.  Yet, for a change,
    NWU's rabble-rousing, confrontational tactics are exactly what we
    need, at least to draw the line here and now.
    
       "There's no case law on this," lawyers say.  Balderdash.
    Publishing is publishing, no matter what the form.  Ditto copyright.
    But if they want a lawsuit to reaffirm and extend the existing
    copyright law, so be it.  If we don't bring the lawsuit, publishers
    inevitably will, but it will be when they feel another power player
    has violated their rights to our work.
    
       So it's way past time for our associations to stop waffling and
    bickering, close ranks and act.  And it's time for every one of us
    to back them up when they do.  That means we do not sign
    all-encompassing contracts unless we get more money up front or for
    each subsequent use of a story, and at least a 50/50 split on any
    resales.  ASJA even advocates 90/10 for books, in our favor.  That
    also means if you find a story of yours on a CD-ROM or online,
    somebody got paid for that, so demand your share.  Publishing is
    symbiosis, not slavery.
    
       Editors and publishers repeat, by rote, two stock answers about
    why we shouldn't worry about electronic database rights.  The first
    is that there's no way to track which articles by which writers are
    downloaded.  More balderdash.  Stories in Magazine Database Plus and
    Magazine Index, for instance, carry numbers, so the same technology
    that made it possible to upload that story and charge people for
    downloading (reading) it can be used to track which author wrote
    which story, thus whom they owe how much.  Lawyers want precedents?
    How about ASCAP and BMI which collect fees for musicians every time
    one of their songs airs?  Having a computer to track downloads is
    easy by comparison.
    
       The second ruse is that any revenue for them or us would amount
    to merely pennies.  At the Newsletter Publishers Association
    conference in June, a publisher said income from theie newsletters
    online is "in the six figures." Such highly specialized
    business-to-business newsletters often have fewer than 1000
    subscribers.  Do the arithemetic for a consumer magazine with 1-2
    million subscribers.  If your story accounts for only a fraction of
    that, could it buy groceries?  Are we truly naive enough to believe
    that CompuServe (owned by H&R Block), GEnie (General Electric) and
    Prodigy (Sears) -- not to mention Dialog, Nexis, BRS, NewsNet and
    ZiffNet --run their online networks as a public service, or that
    Time, Omni, Reader's Digest and all the other magazines scrambling
    to set up their own services online are doing it just because it's
    trendy?
    
       Publishers and wire services don't want people to download
    stories, then use them for profit without payment.  Maybe our real,
    best and only hope is to get the publishers to see that protecting
    our livelihoods is protecting their own.  Or, as The Rev.  William
    Sloan Coffin once told me and probably hundreds of others during his
    high-profile days as a peace activist, "We all have more in common
    than in conflict.  It's precisely when we find ourselves in conflict
    that we should seek what we have in common."
