The clause freelance writers should fight to remove from their contracts

October 22, 2018

As an investigative journalist, my professional interests have a tendency to be niche. I’ve pursued stories about the United Nations’ staff pension fund, the treatment of Cambodian asylum seekers by the American judicial system and the offshore wealth of government officials. As a freelancer, I accept as an occupational hazard that not every publication will share my interests—which is why it was so refreshing when an editor at enthusiastically commissioned a story on the business affairs of the foreign minister of a country so small most of their readers would struggle to find it on a map.

My excitement dissipated, though, when OZY’s freelance contract arrived in my inbox. One of the ways I do my job is by poring over every contract and court record I can lay my hands on. What I found was a “rights grab,” shorthand for a move by publications of all stripes to demand full moral and intellectual rights to freelance reporters’ work.

In recent months I obtained copies of contracts and invoice templates issued by Vice, Mashable, and Politico Europe, all of which oblige freelancers to forgo all rights to their work. Conversations with international journalists point to the rights-grabbing phenomenon extending beyond the English-language press.

ICYMI: After journalist’s killing, NYT makes a bold move with Sunday’s front page

The UK’s National Union of Journalists has been campaigning against rights grabs since 1996, according to Pamela Morton, the organization’s national freelance coordinator. “We’ve always advised members to reply and object and try and not sign these contracts or ask for the offending clauses to be removed,” Morton says. The union has even published a set of guidelines for editors, urging that they pay extra for uses of stories beyond first publication and that they “never seek to buy ownership of copyright from non-staff contributors. This is bad practice.”

In recent decades, as news has pivoted from print to digital, there has been a shift in the copyright terms freelance journalists are expected to work under. In the early 1990s, clauses began appearing in freelance contracts asking that authors grant publications the right to publish their work on CD-ROMs and websites. Since the majority of outlets didn’t even have a web presence, this was more of a hypothetical than something meriting discussion.

Sign up for CJR's daily email

However, in the years since, rights grabs have become more aggressive, preventing freelancers from licensing their work to multiple publications, profiting from translations, or even from book or screen adaptations of their work, leaving them with fewer ways of supplementing their increasingly squeezed incomes. The shift has been driven in large part by a desire by publications to keep up with the digital age by securing the work they commission in perpetuity across a range of platforms and media.

Contracts for Vice and Mashable both require a total transfer of copyright and, more controversially, for journalists to waive their moral rights over their work. With their origins in the first half of the 20th century, moral rights establish writers’ prerogative to be identified as the author of their work and to object to it being altered against their wishes.

Jeffrey Hermes, deputy director of the Media Law Resource Center, a nonprofit providing legal support to content providers, tells me that under US copyright law, moral rights are generally only applicable to works of art, not journalism. This has led to the rise of “work-for-hire” contracts, under which all copyright for the story belongs to the publisher from the moment of creation until the end of time. “The reason you use a work for hire is you never have to worry about the work being reclaimed, it’s simply yours to do with as you want,” Hermes says.

RELATED: The most annoying thing an editor can do

“[Should] journalists be asking for more money because they’re giving away more rights?” Hermes asks. “That starts to tie into questions about the consolidation of the media and how the industry has shifted.”

Mashable did not respond to a request for comment for this article. However, Holly Robertson, the journalist who shared her contract with them, says she regretted signing it.

“I didn’t want to do it, obviously, but it was one of my first freelance assignments and at the time I was unwilling to push back in case it jeopardized the commission,” Robertson says, noting that she believes it was Mashable’s standard-issue contract as it was sent direct from the human resources department.

A spokeswoman for Vice says the policy was a result of the global scale of their operation. While she would not go into further detail than a simple statement, she says the current Vice contract still asks that moral rights be waived.

In the summer of 2017, Politico Europe sent out an updated invoice template to its freelancers, adding a new sentence: “With this invoice you agree to transfer to the POLITICO GROUP all intellectual property rights, including trademark rights and copyrights, pertaining to each article mentioned in this invoice.”

Politico Europe Editor in Chief Matt Kaminski says that while the phrasing might have jolted some contributors, “Our rights policy hasn’t changed since the day we launched.” Rather, he says, the new wording was merely an abbreviation of the company’s existing policy.

RELATED: GQ gave a freelancer 2 days to produce 4-page section as an edit test. The mag’s response was a letdown, to say the least.

“We don’t want to unnecessarily constrain freelancers to make a living off their ideas and there is certainly room for discretion in how broadly we interpret this policy when it comes to turning stories into, for example, film pitches or books,” he says.

(CJR’s freelancer agreement contains no moral rights clause. It does seek exclusive rights for a year. The writer retains the copyright to the piece.)

While in the past freelancers would usually sell publications a license to print their article, today it is much more common for outlets to either buy an assignment of rights or the whole piece outright as a “work-for-hire,”says Hermes. The all-but-extinct licensing model gave freelancers access to much greater revenue streams, since it allowed them the option to sell the same work multiple times.

The new model, Hermes says, is less likely a product of a “vulturous” hunger for copyright on the part of publications, than it is a response to the fact that online publishers are by their nature international, and so require a broader set of rights to protect the work they buy.

“You’re dealing with a situation where freelancers can no longer rely on the return on their work that they could recently, which means journalists are going to be in a tougher situation which can have all sorts of unfortunate knock-on effects,” Hermes says.

There has been some pushback to the policies. A 2013 survey by Loughborough University, in England, found that 20 percent of newspaper freelancers and 37 percent of magazine freelancers had refused to sign contracts asking them to transfer their copyright to the publisher. In April, the Authors Guild won a $9 million settlement on behalf of 2,500 writers whose work was licensed to digital databases without their consent, although it took them 17 years.

Morton, of the UK’s National Union of Journalists, wrote in an email that there has “clearly been a trend away from” publications buying first regional serial rights spurred on by the fact most outlets now have an online presence. The Guardian has taken the opposite approach, choosing to publish its full freelance terms and conditions online. Rather than grabbing all rights to a journalist’s work, they require exclusivity for the first three months, and that the author allow them to act as a reseller of the work, splitting any resulting revenue.

A Guardian spokesperson said via email that the charter came about in 1999 as the product of extensive talks with writers’ unions. “[It] is intended to balance the rights of contributors as the first owner of copyright with the needs of Guardian News & Media as an international media concern,” the spokesperson wrote.

In my interaction with OZY, I responded after reading the contract that while I would love to do the story for them, I could not under terms that included a “work-made-for-hire” rights grab, and a stipulation that I was to obtain written permission from OZY before ever writing on or being interviewed about a “subject similar” to the story ever again. Could their legal department tweak the contract, perhaps?

“I fully understand your concerns about OZY’s contract, but I also know those terms are not subject to revision,” came their reply. “We have so many freelancers writing for us, from Lithuania to LA, and the relationship is a happy, mutually beneficial one.”

OZY has since not responded to multiple requests for further comment.

Camille Lavoix, a freelancer who reports from Africa and South America, says she frequently finds her work has been translated and reprinted without her consent, usually with a delay of between two weeks and two months between her original work being published and it turning up translated elsewhere.

“One day I received a message on Facebook from a Portuguese guy saying he’d read my article in a Portuguese paper. I told him I don’t write in Portuguese and he said ‘No, it’s front page,’” she recalls. “I wrote [to the French publication] and they offered me thirty or fifty [British pounds]. They wouldn’t answer my emails or take me seriously.”

Obtaining copies of French papers’ copyright policies can be an arduous task, she says, and regardless she believes many of them in fact violate French laws, something she is in the process of retaining lawyers to challenge.

She believes journalists need to take a more active approach in challenging the status quo.

“We should make them feel ashamed about what they do and expose them; that’s what we’re about, writing about abusive practices,” she says. “We should speak out because that’s our tool, we’re not lawyers but we’re journalists, so we can write about it.”

ICYMI: A portrait of Trump’s mental state by photojournalists

Jack Davies is a British freelance journalist based in Belgrade, Serbia. Follow him on Twitter @jackoozell.