Dear Transcontinental Media:
In the past decade or so online theft of intellectual property has become not just a problem, but a cause celebre, with a lot of people who should know better claiming that all information belongs to everyone, gratis, and that appropriating a piece of writing a professional writer has executed, and then reproducing it for digital consumption, is not only a right, but impossible to stop anyway, and ergo it isn’t stealing. This is of course hogwash. It’s stealing. But at least in this case the stealing was being done by self-righteous internet mavens who had just gotten used to not paying for anything they wanted to read or transmit. But now it appears I’m being presented with the spectacle of a publishing company itself — who you’d figure would be very sensitive to people stealing their property under the guise that it’s not theft at all — proposing to do the same thing to me. By stipulating that in selling a piece (yesterday I would have said selling first publication rights to a piece) to you, I am granting you full copyright to said piece, whether or not I pitched it or it was commissioned, whether or not it was my idea or yours, and that in obtaining that copyright you would then control the subsequent secondary publication rights of the piece in all instances (meaning that I would have to petition you in the event I wanted to re-capitalize what I had in fact created), Transcontinental is effectively proposing that I willingly agree to let you steal a portion of my work. You have become the guys who want something for nothing. The further fact that you also want me to waive any “moral” restrictions as to what you can do with what you’ve just pilfered is just a bit of icing on the cake. Both these new ideas are, for me, unconscionable, and as they say, deal-breakers. I frankly couldn’t respect myself if I agreed to them.
Where do these new ideas come from? What’s the rationale behind them? Rest assured, I’m not the only freelancer baffled by these questions. In a recent Story Board post, Ann Douglas, a (now-resigned) contract columnist at the Toronto Star, described her reaction at being presented with that newspaper’s new freelance agreement, which included secondary publishing rights stipulations similar to the Transcontinental agreement, and which was to be signed “as is”, without amendment or discussion. “The word ‘agreement’,” Douglas wrote, “implies that the two parties have had some sort of discussion and have found some common ground. That simply never happened in this situation. The “freelance agreement” was presented to me as a fait accompli – something to be signed – or not.”
Ann Douglas is right to point out that “freelance agreement” is a misnomer. A better description might be a species of “Emperor’s New Agreement”, wherein the emperor is presenting his subject with an agreement that to everyone in the kingdom apart from the emperor is no agreement at all. A couple of possible explanations exist for this: one, the emperor is honest and clueless. Two, the emperor is cynical and surrendering. What he’s surrendering to is the inevitability of intellectual property theft in the brave new internet world. The emperors – in this case the Star and Transcontinental – have apparently decided that they can’t exist in a digital universe unless they’re allowed to play as fast and loose with creative ownership as the guy down the street has been playing fast and loose, ever since he got online. I’ll pay you for one thing you own, they’re telling writers, as long as you agree to let me steal a few other things you own at the same time. Clearly they expect this to be a successful overture; hence the “as is” stipulation. This is a revolutionary gambit for the world of print journalism, I should point out, albeit not for the world of Hollywood movies, where it’s part of the catechism. It was Hollywood, after all, that spawned the joke: “Did you hear the one about the really dumb starlet? She fucked the writer.” The point of the joke was that the writer was the last person you should fuck if you wanted to advance your career (the modus vivendi of starlets) because the writer was the most powerless person in the movie equation. The person to fuck was the director, or even better, the producer. What the joke doesn’t mention is the truism that without the writer, and the story he or she creates, neither the director or the producer would have any movie with which to entice the starlet. So maybe in servicing the writer, the starlet wasn’t so dumb after all.
Canadian print journalism isn’t Hollywood; it lags a bit in glamour. But there’s evidence that in terms of industry double-speak it has big-league aspirations. In an interview with Rachel Sanders (which also appeared on Storyboard), Susan Antonacci, Transcontinental’s Executive Director of Brand Development, is quoted as saying: “What I can say is that we have great relationships with our writers and we’ll do everything that we can to promote our contributors and work with them moving forwards.” With all due respect to Ms. Antonacci, I beg to differ. I do not have a great relationship with Susan Antonacci; I have a great relationship with certain editors at Transcontinental with whom I’ve worked, and whom I admire and respect. I feel that way because they understand that, say, a piece I wrote for one of their magazines called “The Iron Age”, was the story of a very personal moment that happened between me and my wife. In selling the story to the magazine in question, I was letting it become the first public conduit for that piece of my life. Under the new Transcontinental agreement, I would be letting the company own that piece of my life, in perpetuity. This isn’t why people become writers. Writing down pieces of our lives or the products of our brains is an exercise in owning them even more. And retaining ownership of those pieces and products (yes, so we can re-capitalize them) is how we justify the very modest compensation we receive for renting them out the first time. The understood agreement between publisher and freelancer has always acknowledged this truth. It is based on the notion of copyright, a right which for people who work with words — not natural union-joiners — has historically served as a specialized collective bargaining agreement. It’s my sincere wish that the people at Transcontinental could manage to remember this time-honoured bargain, and amend their agreement accordingly.
That way I might get to write for you again.
I could use the work.
Very Best Regards,
Jay Teitel
Jay Teitel is a Toronto-based writer and editor who has won over 25 National Magazine Awards.
4 comments
The same demands are bring made of photographers and illustrators. We used to differentiate corporate work from editorial…corporate clients would take a buy-out of the work and pay the artist accordingly whereas editorial would pay a fraction and would take first-rights only. To add insult to injury the current pay scale is less than what it was 15 years ago.
My question though is how does the subject of a photo or an interview fit into this scenario? So far writers are only looking at their own rights but there is a bigger story here. Jay refers to his story “The Iron Age” as being very personal but every portrait or profile has that characteristic. What happens if the writer/photographer says…”By the way Transcontinental/Star demands that your photo/words be theirs to use at their discretion in perpetuity”? Will any subject agree to be part of this process?
What happens if we writers/artists start saying before the photo shoot/interview “I am obligated to inform you, the subject, that your quote/image/thoughts will be become the property of this corporate entity.” What if we start going back to these companies and say…sorry John/Jane Doe doesn’t want you to have the right to use their image as they see fit in perpetuity but they will agree to let you use it for this specific purpose ie first use only.
What if we make our own counter-contract that includes the rights of the subject and is signed by them?
Jayne Finn, designer, art director and teacher
Jane makes an excellent point. This is the kind of thing that kills journalism since it makes the story ultimately about the publisher and the publisher’s commercial interests.
Very good point, Jayne Finn. My career as a writer has been based on building trust and forging relationships with parents. Those relationships aren’t for sale.
Jay Teitel hits several nails on the head. But there is a third interpretation (besides “cluless” and “cynical”) of this corporate behavior, and that is purely venal. TC Media, Torstar, and the like are selling the work of freelancers to other publications without any flow-through to the writers and photographers. Please correct me if I’m wrong.