Rights of Freelance Writers for the Chicago Tribune

We thank the Chicago Reader and columnist Michael Miner for permission to distribute the following texts of recent coverage of the dispute over the electronic rights of freelance contributors at the Chicago Tribune.
Irvin Muchnick Assistant Director National Writers Union <irvmuch@netcom.com>

 Reprinted with permission from the Chicago Reader.
December 13, 1996
By Michael Miner
Freelancers in Bondage
The Chicago Tribune recently sent its stringers a remarkably unpleasant new contract. The Tribune agreed to pay them something for the work they do. It agreed to nothing else.
Don't call the new terms feudal; the paternalism of lord to vassal does not exist. The Tribune makes it clear it's denying its freelancers employee benefits, legal protection, resale rights, and compensation for electronic reproduction. Under this contract the freelancers would retain no more claim to their writing than farmers retain to the pigs they leave at the stockyards.
Chicago readers of the Tribune can't fully appreciate the paper's dependence on stringers, but the bureaus whose reports fill the suburban Metro sections couldn't function without them. "We actually outnumber staff writers by ratios that range from 7 to 1 to 11 to 1," says one freelancer. Many cover beats and are sometimes sent out on breaking stories. What they earn can approach a living wage. But, said the freelancer, "they treat us like redheaded stepchildren -- beat 'em, abuse 'em, lock 'em in the closet."
The new contract arrived late last month, to be signed and returned by December 15. Rumor had it that its terms would be onerous, and the actual language didn't disappoint. Central to the writers' discontent is the Tribune's blanket dismissal of reproduction rights.
The previous contract refused to pay its freelancers extra when their work was reproduced "in various databases, and in conjunction with any other products, including, without limitation, microfilm, online services and CD/ROMS." But if the Tribune ran a story a second time, or if another Tribune Company paper picked the story up, or if a syndicated section such as KidNews and WomaNews carried the story, the writer would get an extra fee. Or the writer could sell the work a second time to a noncompeting medium.
Under the new contract no medium is noncompeting, and the purchase is once and forever. "You agree to assign to [the Chicago Tribune Company and Chicago Interactive, Inc.] all right, title and interest in all submitted material....CTC and CII shall have an exclusive worldwide license and right to publish, copy, modify, display, distribute, perform and broadcast the submitted material, in whole or in part, in any print, electronic or digital media or software of any kind now existing or developed in the future."
This is journalism as pure piecework, and the Tribune justifies it as a hedge against a future no one understands. "The industry is changing, and I can't tell you what electronic availability will be there tomorrow," says Joe Leonard, the Tribune's associate editor in charge of budget, technology, and administration. "But we have to have our stuff available on it, no matter what it might be."
Since the Tribune now intends to buy total rights, I asked Leonard, will it pay writers more to buy them? Fees are between the writer and his editor, Leonard said. Is an increase planned in the editorial budget to cover larger fees? He said, "I'm not aware of any."
Under the old contract freelancers had to pledge that their work was original. Under the new they must also "represent and warrant that...the submitted material does not knowingly defame any person or unlawfully invade their privacy. You agree to indemnify and hold CTC, CII and their affiliates harmless from and against any and all liability and costs incurred as a result of any breach of the foregoing warranties."
Editor Howard Tyner told me this language gives the Tribune some leverage over its stringers while emphasizing the legal distinction between stringers and staffers. To the freelancers it's simply a petty insult. As the Tribune ties its fortunes to them it impugns their professionalism and promises to throw them to the wolves if trouble comes.
And although freelancers were always denied the perks of employment, the new contract rubs their noses in it: "You will not be eligible for any employee benefits of any kind...including, without limitation, medical benefits, insurance and retirement benefits."
The reaction: "I'm not signing it," said Donna Chavez, who freelances for the Transportation, Tempo, and Metro sections and has published more than 50 bylined stories this year. She won't because she can't afford to. She's resold her feature stories for up to six times what the Tribune paid her for them originally. "Being a freelance writer at the Tribune is like buying the milk without buying the cow," she said.
"Now they want steaks and a leather jacket without buying the cow."
Shirley Remes, who writes as S.R. Carroll, estimates that the Tribune has published 800 of her stories in the last eight years, most of them features written for the Du Page and Northwest editions. She's sold 200 this year alone. "I feel we were forced to sign away our electronic rights last year," she said. "I don't want to sell away any more. I'm also concerned about indemnification. The way I read it, we no longer own the rights to our work, but we're responsible for it. The Tribune is no longer going to stand behind us."
Remes said she makes something under $20,000 a year from the Tribune, money that's putting her children through college. "But I can't sign that contract," she said. "I'll go work in the Jewel deli before I sign that contract."
The reaction of a core group of perhaps a half dozen freelancers was to organize. First they took soundings. "An unofficial poll was done in one area where I heard that about 50 percent of the writers said they wouldn't sign the new contract. That's about ten people in one zone," organizer Barbara Gillette told me. Gillette covers the McHenry County board for the Tribune and has had more than 130 stories published this year. In another zone, Gillette said, a dozen or so writers were balking. The organizers calculated that they might have 60 to 100 suburban writers on their side.
The organizers wrote a letter from the "Tribune Independent Writers' Association" asking stringers not to return the new contract, and they composed an alternative contract for them to send to their editors instead. This counterproposal would require CTC and CII to pay extra to recycle their work -- either in print or electronically -- and protects their freedom to remarket it themselves. It replaces "knowingly defame" with "intentionally defame." I talked to Joe Leonard minutes after a suburban editor called to say he was faxing a copy of the proposal downtown.
What of the counterproposal? I asked. "That doesn't matter to me," Leonard said. Will you even read it? I asked. "I always do," he said. "I do not expect it to affect me."
But Leonard's may not be the last word, not locally and certainly not nationally. Electronic rights have turned the traditional relationship between freelance writers and publishers upside down -- until a couple of years ago the Tribune didn't even bother with a contract -- and the courts may have to speak before the two sides agree on a new one.
Work-for-hire rules similar to the Tribune's were imposed last summer at the New York Times; denounced as "odious" by the National Writers Union, the Authors Guild, and the American Society of Journalists and Authors; and then watered down. Last spring the Boston Globe told some of its neighborhood stringers to sign a one-paragraph contract asserting that the Globe "shall own all rights, including copyright, in your articles. As works made for hire, your articles may be reused by The Boston Globe with no extra payment being made to you."
The Globe got back a handful of signed contracts, plus a letter from the newly formed Boston Globe Freelancers Association denouncing the contract as "utterly inappropriate" and suggesting talks. The letter was accompanied by a list of 72 names. The Globe has never responded, said an organizer, but it hasn't pushed writers to sign the contract either. "Everything's in limbo now. Our assumption is that everyone, publishers and writers alike, is waiting to see what that federal district court judge has to say in New York."
The reference was to a suit the president of the National Writers Union, Jonathan Tasini, brought three years ago against the New York Times Company, Newsday Inc., Time Inc., Lexis/Nexis, and University Microfilms. Tasini has described the leaders of today's media industry as "modern- day robber barons" and work for hire as emblematic of what he deems their plunder: "The media giants could cash in on works for decades, without having to pay additional money to many of those who actually created the work."
A sense of underappreciation is endemic among freelancers, and contracts such as the one the Tribune just proposed don't help matters. Freelancers tend to think that editors like to think the next college kid through the door could do the job just as well. I asked Howard Tyner what he thought about losing 60 or so writers to the new contract and having to replace them.
"It's not number one on the list of things I want to do," he said somberly. "But we could replace at least some of them." Is there a middle ground? I asked, and he replied by reminding me of what publishers in this electronic age tell themselves they must hang on to for dear life. "If there's a middle ground that causes us to keep control of our content, sure. I don't want to get into the situation where I'm selling against myself."
Copyright 1996 Chicago Reader, Inc.
Reprinted with permission from the Chicago Reader.
January 10, 1997
By Michael Miner
Freelancers Chip Away at the Stone
Those freelance contracts the Tribune wants everyone to sign cost travel editor Randy Curwen just one writer. But she was his favorite.
And her reasons for leaving could have been fixed in a second with a pencil.
"We lost her over minor things," Curwen told me. "A couple of cases of sloppy wording have come back to haunt us."
Such as? The contract she refused to sign stipulated that if an "affiliate" of the Chicago Tribune Company or its subsidiary Chicago Interactive Inc. picked up her story she would be paid a separate fee. But the old contract guaranteed a separate "agreed upon" fee. "Now it sounds like the Tribune reserves the right to use a story any way it wants without checking with the writer," Curwen said. "I've been assured by the front office we won't. But the contract itself says it can't be modified orally or in writing."
The lost writer also was troubled by a reference to "syndicated sections." (These are KidNews and WomaNews.) Travel writers don't want anyone syndicating their stories to other markets -- they want to be able to resell their stories there themselves. But even though the Tribune doesn't syndicate travel pieces, the irrelevant language stood. "She'd like to see it stricken, but I can't change anything," Curwen said. "I've been in this business four and a half years as travel editor, and four and a half years ago you didn't even have contracts," Curwen told me. (The first contract cost him two writers.) "In the old days the Tribune was microfilmed, and that was accepted procedure.
"Now, when you put it on the Internet, in databases, I can understand why some sort of agreement is needed. But I think every travel editor I know of feels that these standardized forms are usually drawn up by somebody who doesn't understand what's going on in the marketplace."
Not quite true. Thanks to the marketplace, the contracts Curwen sent his writers are invitations to the dance when set against the paper's my-way-or-the-highway offer to most of its freelancers. Most of them cover local stories for suburban bureaus, and to guarantee control of its content in this nascent electronic age the Tribune decided to confiscate their product. Said the new contract, "CTC and CII shall have an exclusive worldwide license and right to publish, copy, modify, display, distribute, perform and broadcast the submitted material, in whole or in part, in any print, electronic or digital media or software of any kind now existing or developed in the future." Not that those McHenry County school board notes would ever have much resale value, but the Tribune was demanding the freedom to disseminate them in exotic new forums without offering the reporter even a penny more.
The deadlines freelancers were given for returning signed contracts ranged from December 15 to January 1. If they held out they couldn't write for the Tribune.
To dozens of freelancers this contract turned a partnership into peonage. What further perplexed them was a new indemnification clause that read like a Tribune threat to sue writers over factual mistakes. A "Tribune Independent Writers' Association" was organized, a counterproposal was drafted, the National Writers Union was notified, and late last year an inky variant of the "blue flu" struck suburban bureaus.
Pro bono attorney Michael McCready, whom the freelancers contacted through the National Writers Union, began negotiating with Tribune attorney Dale Cohen. This week he had one and a half accomplishments to point to. The Tribune sent freelancers who hadn't already signed the first contract an alternative in which 30 days after a story was accepted the Tribune would share rights to it with its author. ("The ones who bitched got a better contract," says McCready.) And Paul Weingarten, associate managing editor for metropolitan news, reassured freelancers by letter that the indemnification clause merely put old policy in writing. "The Tribune has never sued any of its freelancers for indemnification," the letter told them. "On the contrary, the Tribune's policy has always been, and continues to be, that it will work closely with its employees and freelancers to defend lawsuits based upon accurate and professional news reporting."
McCready had hoped for more. He suggested to Cohen that the Tribune pay a token extra for the electronic rights it was commandeering, so that when the day dawned that those rights became a source of serious profit the writers would be in a position to share it.
McCready says Cohen replied that the idea sounded reasonable, but that he would have to talk to his people over the holidays. But over the holidays most of the freelancers decided to take what the Tribune was already offering, and this Monday Cohen told McCready that his people had said no. "He raised food for thought," says Cohen gallantly. Says McCready, "What appears to have happened was the Tribune was waiting for January 1 to go by to see who was on board. He said in no uncertain terms that most people have signed it, and I guess they're willing to forget about the people who didn't."
The "special contributors" agreement the Tribune offers travel writers is a concession to reality. Most travel articles aren't written on assignment, and the writers have to sell them more than once to cover costs. "If we had to pay the cost of a reporter going off to Europe it would be astronomical," Curwen said. "One thing I think all editors fear is that if you make too many restrictions you'll lose the cream of the crop. If they gave the same agreement to travel writers they give to the others we'd lose those exceptional writers."
Curwen said there's some "general frustration" among Tribune editors over the contracts they've been told to send their writers, and he did something about it. When he mailed out his contracts last month he added a cover letter that said this: "There has been concern among writers about the additional use online of their stories without an additional payment. To try to rectify this situation, Travel will begin paying an additional $50 for stories starting in 1997 (this is something we have done on an informal basis in 1996 when the budget allowed.)"
"It's something I did in fairness, because I thought we could afford to do it," Curwen told me. "Maybe this will make people feel better, but I can't write it into the contract. All I can do is pay them a little more."
One freelancer I talked to received both contracts. He signed the travel contract without hesitation and told me, "This shows the Tribune can demonstrate some level of fairness with writers when they want to." The other contract was a stick in the eye. Even so, he admitted he was "secretly planning" to sign it Monday morning before he lost his suburban beats.
Copyright 1997 Chicago Reader, Inc.

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