Surprise: Freelancers' Work Sold on the Web

By: Steve Outing If you're a freelance writer, you might be surprised when you visit the Web site of a company called Northern Light. Search for your name (as I did), and you might find some of your old print freelance articles for sale on the NL site.

A lot of freelancers have done this little exercise, and many of them are angry about finding their work being sold by a company with which they have no relationship. They are particularly perplexed, because the publishers that they work with often have no relationship with NL, either. What's going on here?

Actually, what's going on is what has been occurring in the publishing world for years. Publishers sell content to archival companies with which they have a primary relationship -- for example, Information Access Company, Dialog, Nexis-Lexis, Datatimes, etc. But some of these companies re-sell what they get from their publisher clients to other archive database companies (assuming that the contract with a publisher allows such sub-licensing), and companies like NL get hold of the articles and sell them. (The publisher typically earns money from such sub-licensing deals, but it's considerably less than what they get from their primary archive database company.)

Long an issue; the Web brings it to the surface

In the past, most writers weren't even aware of such practices. Their articles written for a publisher client might end up in an obscure database where they would be sold, but most often the sub-licensee operated a proprietary system that was not openly accessible to the public. Most writers never knew that a third party was selling their content.

Companies like Northern Light change this, because NL's site is freely accessible on the World Wide Web for anyone to see (and purchase from). Now, writers are seeing what's been happening to them all along; the practice of reselling content is more visible.

"We've been getting an unusually large number of complaints about (Northern Light)," says Dan Carlinsky, vice president for contracts of the American Society of Journalists and Authors and a freelance writer himself. "But this is not anything that hasn't been done elsewhere for a while."

David Suess, CEO of Northern Light, admits that he has fielded some complaints from freelance writers who claim that he should not be selling their works. He says he refers them back to the publisher for whom they wrote originally. "Northern Light cannot deal directly with other than the source who licensed us the material on questions such as this," he says. "... NL is scrupulous in respecting copyright and legal agreements. All articles on Northern Light carry the copyright notices placed on the material by the supplier."

NL has more than 100 content relationships, representing about 300 publication titles, and has about 2 million articles in its database. The majority of NL's content comes from sub-licensing deals, though the company does have some direct deals with publishers. Generally, publishers can only handle so many relationships with database archive companies, but they want the money that deals with many companies can bring. So they allow sub-licensing of their content.

Some freelancers whose work is for sale on the NL Web site do have a legitimate beef -- with the publisher who initially bought the articles -- if the writer's contract with the publisher does not grant electronic republication rights. Suess says that if a publisher has wrongly included a non-archivable freelance article in the digital archive that it re-sells to NL, then NL will remove it promptly when notified by the publisher.

Sign a contract

ASJA's Carlinsky says that with the advent of consumer services like NL, it is all the more important that freelance writers always write under a contract. Some writers who've discovered their works in NL's database note that their articles were written for the original publisher without one. It's not uncommon for a freelancer to turn in an article and just type "First North American Serial Rights" or similar wording at the top of the first page. But a writer's interpretation of those words -- that the publisher is granted one-time rights in print only to publish the article -- may differ from a publisher's. For example, Sharon Reeves, library manager for the San Diego Union-Tribune, says that her paper's legal staff takes the position that "as long as we provide all of the stories in the paper, (digital archiving) is just another way of publishing the paper -- like microfilm -- therefore, no specific authorization is required from freelancers."

But Reeves says her paper is sensitive to the sub-licensing issue, and when it does agree to let a primary archive database vendor re-sell, "we generally specify that it applies only to staff-written stories."

Other publishers simply allow sub-licensing of freelance as well as staff articles if they feel confident that they have the rights to digitally archive a freelance work. And an increasing number of publishers now spell out the publication rights they are purchasing in their standard contracts with writers.

Carlinsky recommends never turning in a freelance piece without a contract. Most publishers have standard contracts these days -- even those who as recently as a couple years ago often didn't. Too many publishers, he says, demand electronic archival rights in their contracts -- which would allow a freelancer's work to show up via sub-licensing, say, in the NL Web site where it is sold. So writers need to be careful about the language they sign, and renegotiate on the issue of archival rights -- either getting extra compensation in exchange for granting digital rights, or deleting a few lines of language in the contract in order to prevent the publisher from putting the freelance work in a digital archive.

If a writer is tempted to turn in a freelance piece without a contract, Carlinsky says at the least create a plain-language contract that's nothing more than an easily understandable description of the rights the writer is granting to the publisher, and get the buyer (publisher) to sign it. Don't take anything for granted in this era of digital publishing.

Carlinsky says he's seen a lot of bad contracts come through ASJA for review -- from those wanting full archival rights without granting the author any additional compensation, to contracts that are simply poorly written, contradictory, etc. The onus is on writers not to sign a bad contract that might give a publisher full digital archival rights without giving extra money to the author. It's easy to have your work show up in places like Northern Light's article database by signing a contract that allows it. Pay attention, says Carlinsky.

The after-market

It's not that it's a bad thing for freelancers' work to be included in NL-like archives. But most freelance authors want to be compensated for allowing publishers to make money off their works in the expanding digital archiving market -- or else be able to refuse to grant archival rights to the publisher.

Part of what's going on -- and freelance writers need to understand this -- is that the print publishing market is starting to go the way that television and movies went years ago. In the TV world, program producers make much of their money in the "after-market," with re-runs of shows earning huge sums in syndication fees. Movies often make more once they go to the home video market than when they were first-run films in theaters. Now, print publishers are beginning to have new opportunities to make money from their old content.

For freelancers, only vigilance on their part will ensure that they participate in what will become (because of the rise of the Internet as a mass medium) a lucrative revenue stream from old print content being sold on the Web. Northern Light's Suess has this advice:

"Every author going forward should have explicit, in-writing understandings with his or her publisher. Electronic distribution will come to dominate the publishing world over the next decade, so every writer should have gotten paid to include the electronic rights upfront, agreed to get paid a royalty should there be electronic product sales, or decided to do the job for the same fee but throw in the electronic rights in order to get the work."

Steve

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This column is written by Steve Outing exclusively for Editor & Publisher Interactive three days a week. News, tips, and other communications may be sent to Mr. Outing at steve@planetarynews.com

The views expressed in the above column do not necessarily represent the views of the Editor & Publisher company