October 22, 2021
Report of National Grievance and Contract Officer Paul J. MacArthur and
Grievance and Contract Committee Coordinator Barbara Mende
January 1 – September 30, 2021
We advised members on 41 contracts from January – September this year. Perhaps because of the influx of Freelance Solidarity Project members, more of them were related to journalism than in recent periods. We had eight cases (including grievances) involving journalism periodicals and another three cases dealing with online writing and editing. With regard to books, there were eight cases involving unspecified books, six on academic books, three on subsidy press books, and six dealing with collaborations or ghostwriting, plus four agent agreements (an unusually large number). See Table 1.
With the shift in genres came a shift in concerns (Table 2). Indemnification, warranty, and other liability clauses were at the top of the list with14, with payment amounts/rates/terms tied with subsidiary rights for a distant second with eight each, and royalty statements and e-book issues not a concern at all. Confidentiality clauses (five) and noncompetes (three) also came into prominence.
Most of the journalism contracts, which were in large part with prominent publications owned by Conde Nast or Hearst (List 1), were extremely restrictive and indistinguishable from work-for-hire contracts. They tended to contain clauses ceding all rights to the publisher for “any medium now known or hereafter to be invented or discovered.” They also demanded that the writer indemnify the publisher for alleged as well as proven breaches of the warranty that stated the work didn’t infringe on anyone else’s rights. These are not publishers with whom we are likely able to negotiate blanket contracts in the near future, so each battle has to be fought on its own.
The good news was that 26 of the 41 advisees stated that their contracts had been improved as a result of the advisements, with another six writers satisfied with the advice (which did not always include imminent publishing considerations). In most of the journalism contracts the publishers were willing to make small concessions, whether on a kill fee or on agreement to let the writer use the material in a book or anthology. We tell our advisees over and over that contracts are made to be negotiated, not just signed, and that negotiation should be done by phone or email or text conversations rather than by simply scribbling up the agreement. One of the numbers we’re proudest of is that five members refused to sign bad contracts.
A disquieting trend is the fact that several writers completed and submitted their articles without a contract, then were told when they presented an invoice that they had to sign a contract before receiving the previously agreed upon payment. The contracts were usually restrictive. As we’ve stated before, “Don’t submit your work without a contract.” While an email trail can provide proof of an agreement, not having a contract can delay payment and lead to sometimes tense negotiations. Additionally, while a person could “win” and get paid without signing the contract, doing so may result in burning bridges with the publication. We should make a point of communicating the necessity of a contract to our members and market our contract advising services to them.
Of the 14 individual grievances, three were won (including one where we simply advised the member on negotiating strategies), one resulted in a compromise, one was lost and the remainder were withdrawn. We succeeded in convincing an academic press to honor its agreement with a member who wanted to be released from her contract, and a magazine to retract its demand that our member sign a postdated contract. Our member succeeded in convincing several poets to boycott a symposium where the organizers had withdrawn their offer to pay the poets to appear.
The compromise involved a photographer with who is a member of the National Union of Journalists in the UK and a company in the US. A one-week assignment was killed at the last minute. Because there was no signed contract, the company offered to pay one-day’s stipend in “goodwill.” The photographer had billed for a full week as the company’s last-minute cancellation resulted in lost work. A compromise was reached between the two parties.
The case that was lost also dealt with a member who was trying to out of a contract.However, that shouldn’t discourage anyone from trying. When authors request a release, they often get that release. The publisher may not want to deal with a disgruntled author or may be discouraged for the same reason the author is. Sometimes publishers try to force authors to buy their way out, but sometimes it’s worth it.
Four of the withdrawn grievances were referred to lawyers because they involved complex legal issues or because the members only wanted advice from lawyers, which we don’t provide. We generally refer members to Volunteer Lawyers for the Arts, a nationwide organization with which we have informal agreements with a few chapters. It would be helpful if we had more formal affiliations, since many of our members could benefit from lawyers who understand literary contracts. These are quite different from the lawyers we’ve borrowed from parent unions to collect money.
#DisneyMustPay Task Force
The NWU is one of several organizations involved in the #DisneyMustPay Task Force. Paul J. MacArthur is representing the NWU on the Task Force, which was formed by SFWA, and also includes the Horror Writers Association, International Association of Media Tie-In Writers, International Thriller Writers, Mystery Writers of America, Novelists, Inc., Romance Writers of America, Sisters in Crime (SinC),Writers Guild East and Writers Guild West. As Disney’s acquired several media publishing entities, such as LucasFilm (Star Wars, Indiana Jones, etc.), a number of writers for these entities stopped receiving royalties and royalty statements after the Disney acquisitions. The Task Force is working on locating writers that are not receiving royalties and helping them get paid. Efforts of the Task Force have resulted in substantial publicity and in three writers being paid so far. More information can be found at WritersMustBePaid.Org. .
There were only eight general inquiries in the first nine months of 2021, a big drop from previous years. This is a disappointing number because non-members who make inquiries often are inspired to join when we give them helpful answers. The more we can promote our contract advice and grievance services, the better it is for the NWU.
The training our contract advisors have received has been largely oriented to book contracts. Many of them are unfamiliar with the journalism contracts that are becoming a more significant part of our traffic, and more people need to be trained to evaluate them. Certainly, if we anticipate handling more grievances, we need more people trained to handle them. The current plan is to organize another GCC training session to be held sometime after the DA. If you are interested in becoming a Grievance Officer and/or Contract Advisor, please look out for a call that will be issued in the coming weeks.
Our Guide to Book Contracts has been updated several times and is an invaluable source of information, but it needs updating to account for self-publishing and other recent trends. The old model journalism contract needs updating as the the proliferation of all-rights contracts has made it is no longer applicable. Our work-for-hire materials, which are useful in dealing with these all rights journalism contracts, are targeted to the tech writers, not to journalists. Updating these materials will be a significant undertaking.
Unbounded thanks to our talented and caring grievance officers and contract advisors (GO CAs) who are always willing to go the extra mile to help our members. They have made it possible for us to follow the two-day rule – respond to a member request within two business days and respond to our request for help within two business days. They have to deal with uneven workloads and significant demands. They are heroes.
Please contact us with any questions at email@example.com.
KUDOS TO THE GCC
- I am so grateful for your assistance with my communications with [my publisher] … more than you know. So grateful for the help you and the NWU name gave me!
- Thanks so much for looking this over for me! I’m starting to get the hang of things now and am learning how to pick these [contracts] apart myself. I feel like I should tip you for doing all this work for me!
- Honestly, your resources are incredibly helpful.”
- Thanks so much! You’ve been incredibly helpful. Really appreciate it. I got a slightly higher rate for my next assignment and every bit helps.
- Thank you all for helping me figure out how to evaluate an agent agreement. My co-authors and I did sign a contract with [the agent] with [the advisor’s] cogent suggestions integrated. So good to not have to navigate the publishing industry alone!
- [The magazine] compromised on several — not all but enough — of the points we discussed. Your guidance here was indispensable and I am indebted.
- I absolutely was able to bargain for a better contract thanks to the support and advice I received from NWU and am so grateful for it.