No matter how much these rights are actually worth, publishers and editors often shy at changing their terms. “When a writer suggests, ‘How about changing it this way?’—they panic,” says Mike Bradley, of the National Writers Union. “They don’t know what it means. You have to educate the publisher, and they don’t want to be educated.”
It is possible, though. Bradley sent me to talk to Todd Pitock, because he’d had success pushing back against work-for-hire contracts. Pitock’s advice: know why you’re asking for certain rights. “I think one of the reasons that writers are vulnerable is that they don’t exploit their work to the full extent that they might. They object to the idea of not owning it on principle,” says Pitock. People are more likely to listen, he says, if a writer can explain how the contract is hurting her income.
Asking also helps. Pitock left one work-for-hire contract sitting on his desk for a couple of weeks, struggling with the idea of signing it. Finally, he called his editor and asked if there was any possibility of changing it. The editor responded quickly: He didn’t know why Pitock had received this contract. He’d send over the other one—a more flexible one—right away.
It is also possible, though perhaps more nerve-wracking, to ask for more money in exchange for signing away more rights. “The issues really is: Are you going give me enough money to make up for the fact that I can’t make my own secondary sales?” says NWU’s Bradley.
For writers working online, who might not expect to make secondary sales, this sort of bargaining might not seem worth it. There are publishers working online, though, who don’t use work-for-hire contracts precisely for this reason. The Awl, for instance, uses licensing agreements, which give the site the exclusive rights to publish an article for a limited amount of time. The writer keeps the copyright and can republish it, for however much she can get, after the allotted period. “Part of our rationale is that the monetary value of purchasing the copyright should be higher than the value of a license to publish, and so a license to publish is more in keeping with our pay rates,” wrote Choire Sicha,
the Awl’s cofounder, in an email.
They’ve dealt with the problem of republishing the work they’ve licensed in any form they might want to use, too: The writer grants the Awl “a permanent license to publish the work by digital means, on the web and on delivery systems for digital mobile products.” I bet that most of the time everyone signing the contract actually understands what it means, too.
Disclosure: CJR has received funding from the Motion Picture Association of America (MPAA) to cover intellectual-property issues, but the organization has no influence on the content.