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Negotiating Electronic Rights: At What Cost?
by Joseph M. Kelly

As an editor and a writer, I am well aware of the June 2001 Supreme Court decision that paved the way for writers to get reimbursed for electronic rights. The landmark case, New York Times Co., Inc., et al. v. Tasini et al, ruled that journalists have online rights to their work, which strengthens their position in negotiations. It may also lead to a movement by editors to seek out writers willing to relinquish those rights. you could win the electronic rights battle, but end up losing the future work war.

You, as writers, have every right to fight for all the rights you can get. But, you have to ask yourself whether your fight will land more money or a quick exit from the freelance roster of that editor. I'm not saying it's right or wrong, but rather pointing out a reality.

Let's put things in perspective before everyone lights up my e-mail with hate mail. For many print publications, the online version is a scaled-down supplement to the print version and rarely generates revenue. That said, it's difficult for bottom line-conscious editors to warrant paying writers extra for posting their stories online. In many cases, the online version is nothing more than a splash page with a back issues archive.

I have personally dealt with some writers, who are loyal and active members of the National Writer's Union, which is an excellent advocacy group for writers. Tasini, the lead plaintiff in the New York Times case, is the president of that group. He waves the banner for writers. The existence of such an organized front for writers is admirable, and truly necessary. That's all wonderful, But, there is a downside, as well. The Tasini case was predicated on existing print materials that were to later be used online. The New York Times sent its writers a notice asking them to sign off on electronic rights. They were working backwards.

In a few recent instances, regular contributors to my magazine stood up and said they wanted 50 percent more money for permission to publish their writings online. The remainder of the contributors to my magazine signed over electronic rights. I don't sell their work to services or other news organizations; I simply publish their stories in our print version and then post the work to our Web site for easy retrieval.

For the few battlers who refused permission without 50 percent more money, I simply do not post their stories online. That can be detrimental to them because no one can access their stories online. In addition, it damages the writers' ability to renegotiate at the end of their contract. If they ask for more money, I would refuse because I pay other writers less for more rights. Also, when the next slate of assignments comes around, I might consider another writer who is willing to give up the electronic rights as part of the deal.

It boils down to a tradeoff of sorts. If you create problems for editors, they can simply stop giving you assignments. So, you have to consider whether losing the regular work is worth standing up for your rights. This is all theoretical, of course, but editors can hire and fire freelancers at will for no reason at all. We could drop a writer without notice and move on. That's the nature of freelancing.

Here are some tips about negotiating that might prevent you from negotiating your way off the editor's freelance roster. It's OK to ask about electronic rights and request additional pay for it. I wouldn't ask for 50 percent more, as some have. I'd also tread carefully and not plant the seed that your work is worth it (even if it is). The list of available and competent writers is too long to keep you in the stable. Many desperate, yet capable, writers are waiting by their telephones for an assignment and would do it cheaper, while relinquishing their electronic rights.

I don't provide this information to become a target for the National Writer's Union, nor do I wish to come across as a cheap editor. The simple fact is, I -- and many other editors -- can't justify 50 percent more to post a story online. If you demand that type of an increase for the rights, you may end up seeking work elsewhere. However, the time might come in the near future when the Internet as a medium evolves enough to warrant such increases. Until then, be careful what you ask for.

Copyright © 2002 Joseph M. Kelly

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