Another attack on author rights

The Authors Guild reports:

One of the nation’s leading newspapers is attempting an unprecedented rights grab, according to its writers. In the midst of contract negotiations with its newsroom staff, the Los Angeles Times, purchased last year by biotech billionaire Patrick Soon-Shiong, has proposed that its journalists, as a condition of employment, cede control of any books or other creative works made outside of their daily journalistic duties.

The Los Angeles Times Guild, a trade union representing some 400 newsroom staffers, has called the proposal “a new low in the newspaper industry,” pointing out that no other major newspaper has such strict copyright restrictions. “If we have a book idea related to our work,” according to the Times Guild, “the company wants unfettered power to claim control over whether it gets written, who owns the copyright and what we might get paid for it.”

There’s more at the link.  Recommended reading.

The key phrase, for me, is in the second paragraph:  “a book idea related to our work”.  Who determines whether a book idea is work-related?  For a journalist who writes a story about (say) corruption among politicians, then proceeds to write a novel about the same thing, that may be pretty convincing evidence of a tie-in.  However, what if a non-journalist author is writing about something related to their employment?  A few examples:

  • I worked as a prison chaplain, then wrote a book about my experiences.  Is the prison entitled to any share in the copyright for it?
  • Alma Boykin teaches at a school, and occasionally writes about her experiences there on her blog.  If she were to write a novel based on them, would the school be able to claim any part of the copyright for that book?
  • On a slightly more risqué note:  Xaviera Hollander wrote a book about her experiences as a prostitute.  What if a former client of hers recognized details of himself in her description of a customer (even if he wasn’t named), and claimed partial copyright in that story on the grounds of his “involvement”?

We may laugh, but I think these are points that are going to be raised more and more often by intellectual property court cases.  We live in an age of not only monetization, but financialization.  More and more, stories, tales, speculations, even idle chatter, is seen as a form of influence over how people spend their money;  therefore, those involved in such events want their pound of flesh out of it.

Is this likely to become a factor of concern for indie authors?  Your guess is as good as mine, but I think it’s something we’re going to have to start taking into account.  Please discuss among yourselves.

28 thoughts on “Another attack on author rights

  1. Most industry currently has this policy. I’m and Electrical Engineer and my employment contract has this. The idea is that the knowledge that lead to the invention was paid for by the company.

    The devil, of course, is in the details. A writer that breaks a story over a year of company time then writes a book about it, isn’t that bought and paid for by the company?

  2. On point 3: There was a short-lived kerfuffle a while back over one of the singer Adele’s albums. Seems her boyfriend was trying to claim ‘rights’ to some of her songs since he claimed he was the guy in them. So to some extent people are already trying number 3. (Though in that case I think the Judge told him to shove it. But there was no contract between them.)

  3. Several thoughts on that: first, we’re not seeing the actual contract clause, we’re seeing what one party to the negotiations has taken public in an attempt to pressure the other side. Which means that the ratio of truth to hyperbole is… unknown.

    Second, journalists are in a peculiar position compared to, say, nurses or pilots. Their job duties are to create IP, so if they are creating IP on the clock and selling it as their own, then that’s not unlike someone employed to paint houses by a city employee employed to paint things who decides to start painting houses on the clock and pocket the money. In the latter case, it’s pretty clearly a a breach of employment, yeah?

    If you’re a restaurant critic for the paper, and you take pictures of the dishes served and have a monetized instagram account or youtube channel, then wouldn’t that count as the same thing?

    Third, a great number of the things that journalists write off the clock are non-fiction about things experienced on the clock. If a reporter for the LA Times writes about the Rodney King riots, which he reported on, then it’s pretty fuzzy – because all his research was on work time, as part of his duties, and writing about it is exactly what he was paid to do. If an aquatic researcher was paid to research and compile a report on whale migration paths, and they write two reports – one they turn in, and the other they sell to National Geographic, does the institution that paid them to do all the research have a claim to the IP & the money they make from selling the second copy?

    Fourth: if they’re just using their job skills in off-duty hours, then I don’t see where there paper has a claim. Cops who moonlight as security guards aren’t required to pay a tithe to the department of their money, just because they’re using some of their job skills and duties in a different context. nor is a pilot who does flight instruction on the side required to send some of the tiny paycheck to the airline just because that’s where he uses his job skills most. And if either writes about their experiences, creating IP is completely different than their actual jjob duties, and not owned by the company at all. (Unless there’s something nasty and overreaching in the employment contract they signed. Read the fine print!)

    So if they’re writing fiction that only tangentially touches on their job, like Kris Rusch’s number of journalists and authors that keep popping in her stories, then doing it on their own time the company shouldn’t have a claim.

    …I think it comes down to what the final fine print says, and that needs to be negotiated carefully. But the overall concept? The paper does have some legit claim in some cases.

    1. re: cops moonlighting

      Depending on the department, the department may get to say “Yay” or “Nay” on whether you can even have a position outside the department, and what type of position it is. There is a broad range there.

    2. And the lawyers who wrote the contract work for the company, not the employee. So even if reasonable it’s probably written to make things as easy on the company as possible and who really cares if it doesn’t protect the employee.

      But I do think that that there are legitimate issues and Dorothy covered them better than I could.

      And re: what kamas mentioned… a “yay” or “nay” process ahead of time could simplify a lot of things and isn’t probably unreasonable.

    3. I suspect the question is: how much of the reporter’s official work appears in the derivative work? If the reporter is assigned to the city government beat, then writes a book about corruption in city government (or in praise of city government), yes, I can see the paper wanting a cut. If the reporter writes a novel in which an alderman gets done in, and uses a little of their experience with City Hall as stage setting, then no.

      1. What says the official contract? Just how bad or good are the terms?
      2. What percentage of a person’s day-job appears in their derivative work?

      IIRC, and its been a while, that the courts generally have sided with the employer when cases like this have com up in the past (specifically a photo taken after the Oklahoma City Bombing in 1995 that was then used by the photographer for other things.)

    4. I’m going to push back on that.

      Any company only has a claim to the work they paid you to do.
      If they received what they paid for, then they have no further claim or complaint for any other work you might do.

      If you defraud them by withholding information they were paying you to report, and then include it in your book, then they have a claim.
      You, and you alone, are entitled to the fruits of your own labor.
      If you are a restaurant critic who fills his column inches and then provides a more in-depth review as a private paid service, good on you.
      Act honorably, and you’re square.
      Problems only begin arising when there is a conflict between the versions, when the original work suffers, or when the original work is used to advertise the derivative works.

    5. The Rodney King / whale examples aren’t really fuzzy. Reporter who writes a story on what happened in the riots has turned in the work he was paid to write. He wrote to the specs the editor asked for. He then writes a book about what it was like for him to be there during the riots, which is a different angle, and not one that the LA Times is necessarily interested in.

      “What’s the angle?” and “Who is the target audience?” Those questions determine what gets used by whatever outlet. National Geographic will likely have a different angle in mind for the whale story than NOAA would. Non-fiction writers have always repackaged work for different outlets, without a problem.

      So what if the reporter on the politics beat writes a political thriller? How is that different than a regular Joe reading Times and gleaning information from it as research for his own political thriller? Remember “Argo” being inspired by the Wired article? There’s no difference: if the reporters’ research and work for the LA Times gives them a claim on their novels, then it gives them a claim on your novels, too.

      Netflix (I think) has “The Soloist,” about an LA Times columnist, Steve King, who I gather covered a story about a homeless musician who had studied at Julliard. King is played by Robert Downey Jr., and the musician is played by Jamie Foxx. Cha-ching, and I wonder if that’s what’s inspiring the rights grab. But, the parts of the movie I saw included King’s marriage, an injury he had to recover from, and all other sorts of personal details. Details unlikely to be published by the Times itself. That’s how this often works.

    6. There’s also the aspect of whether the writers will have the money to fight an unjust claim.

  4. I wouldn’t put it past the L.A. Slimes. Only thing it was good for was lighting charcoal.

  5. When you see a clause like that in a contract is when you laugh raucously and throw your pen at the son of a bitch across the table from you.

    Also known as a poison pill. You do not want to work for them. Things will only get worse.

    1. No, no, no. That’s when you cross out the clause and scribble in: “Everything I write is mine alone. For a suitable fee, for each article you print I will I grant you one-time use. For another fee, I will grant you reprint rights.” And so on….

      Trouble is, nowadays there are so many wannabe journalists who work for free that the papers think everything belongs to them by default.

      1. The problem with your approach is that they might take you up on it. Then your troubles will begin.

      2. A photographer friend uses that method. He showed me a contract from a magazine that basically gave all rights to the magazine. He crossed out almost all of the contract, penciled in his terms and a pointer to his standard rights managed one time use license. They took it.

  6. I briefly worked at a tech company almost two decades back that wanted us to sign over all patents and copyrights for anything created (in whole or in part) during the periods of our employments, and during a one year non-compete period afterwards.
    It was pushed hard as a “condition of employment” at us Temps, of whom exactly none were creating IP for the company, and exactly none were going to be directly hired.

    It turns out that I *can* do a reasonable impression of a Marxist labor union advocate.

    1. Luke, my husband, who cannot channel a union rep, was forcefully advised by his pushy wife to not sign a short term temp IT contract that would have barred him from working in IT for a year after the contract ended or pay $23,000 to the company. The kicker was that it was a six month contract paying $12,000. (Contractor: they never enforce it! Me: Contractor wanna agree in writing to pay the penalty on your behalf if they decide they’re going to this time? Husband: repeats what I said to contractor. Contractor: Uh, no.)

      He still hasn’t learned to read contracts, but he’s mastered the art of handing them to me to read for him long since.

      1. a short term temp IT contract that would have barred him from working in IT for a year after the contract ended or pay $23,000 to the company.

        That’s bloody stupid and insane. What did they expect your husband to do after the end of the contract? Starve?

        Also, good that he shows the contracts to you. Holy crap. That’s evil.

        1. “What did they expect your husband to do after the end of the contract? Starve?”

          Well, yes. Generally, whether or not they try to enforce it is based on whether or not you’ve pissed them off, relying on you not having the money or knowledge to push back.

    2. Yep, I’ve seen and heard of some pretty stupid IT contract stuff over the years. Including one 5 YEAR non-compete clause, as part of a 3 month coding contract. And yes, when asked, they were serious about it because “they have to protect themselves from people stealing their clients.”

      1. This is an industry that runs help wanted ads calling for five years experience with Product 5.0 — released 3 months ago.

  7. Doesn’t Disney have something like this in their employment contract? Anything creative that you come up with during your employment — doesn’t matter what your position is, even if you’re a janitor in Disney World — belongs to The Mouse.

    1. IIRC, Disney was accused of that by someone who developed and submitted a character idea on the job, and wanted to take it with him because they hadn’t used it.

  8. Luke’s take looks right to me. I know several reporters who wrote books based on stories they covered as reporters. The reporters didn’t “wrong” their employers, and their books are also “exposure” for the paper as much as it is income for the writer. What the LA Times is asking for is a serious aberration.

    Consider also that reporters and photographers are brands as much as they are “IP generators.” For years there’s been a big push to put them on social media under their own names, and not just post under “the LA Times” or whatever. The publishers can’t have it both ways.

    I knew one columnist who made a point of putting up near her desk the magazine covers that had her as a featured interview. It reminds the editors come “evaluation time” how much impact she has on the community. She’s a brand, and is paid accordingly.

    There was once case where a columnist (who wrote books that were turned into movies) was caught making up events for a column. He’s nationally known. He wasn’t fired: having him in the masthead was worth some $$$ when the original conglomerate sold the paper to a different conglomerate. It’s a two way street.

    Also consider that there’s a such thing as “column inches”: there’s only so much space in print to convey information. A podcast can only last so long. There’s tons of material left out, for various reasons, including timeliness of fact checking. What one [news] editor cuts, another [book] editor will add in.

    The idea that the LA Times has a claim on the reporters’ books could only make sense if the books are just a regurgitation of what the Times published, which is not what happens. “The Inside Story on How I Reported X,” vs. a straightforward reporting of X. What was it like to chase down this or that fact vs. the report of the fact. What was it like to get an interview with Subject A or B vs. the interview with A or B. The “story behind the headlines,” basically.

    Then there are the witnesses who might not want to talk for a news story — too raw and immediate — but might be willing to sit down for a book when they’ve had time to reflect, and the reporter has had time to cultivate trust. And you know what happens? Often a story gets published in the paper about that new angle, which promotes the book, with a hook that gives enough meat for the paper, and still whets the appetite for the book.

    I can’t see the justification for what the LA Times is doing. Now, there is an instance where a non-compete would be fair: it is very common for newspapers to print up their own books based on a series they’ve published, or a special local event, e.g., sports teams winning championships. Usually the books are sold as local interest.

  9. Fun counter argument.

    Lot of the arguments here are based on the question of whether one’s side project interfered with delivering one’s contracted work.

    But there is another angle to thought work. Some of the thought work one does is based on data freely and publicly available. One might be able to compile a table from such data while working for customer A, then later after A’s job is finished, use that table to save time working on a different project for customer B. But it would be wrong to use confidential data provided by A in work B is paying for. It would also be wrong to accept money from B for a copy of the work provided to A, if the job is the sort that implies a promise of confidentiality. Okay, there are things like doctors using patient data to work out dosing guides. Still, there are cases where promises of confidentiality are important. But how does that apply to a news organization? Sure, folks will give more time to someone from the NY Post than from the New York Nazi News.

    It makes more sense if you consider the LA Times an information warfare organization dedicated to making sure that some of the stuff it is in a position to find out is instead kept confidential. LA is where Hollywood is. The charitable interpretation of that model is that lots of the public are very crazy about actors and actresses, and the Times has a legitimate interest in making sure that reporters do not use the organization to collect gossip, then leave and live off peddling the gossip. The hostile interpretation points to all the rape allegations that have come out.

    Even an organization less concerned with the harmful effects of salacious gossip might have a similar legitimate interest. Say a paper is selectively covering the crime beat, making sure that events are not reported in a distorted fashion that could inspire racist pogroms. A paper with such a mission would be very displeased to have a reporter go to White Supremacy Press, and publish “What Paper Does Not Want You to Know About Criminal Menace”.

    I think a news organization operating to such a theory is probably not worth working for. I do think it is sometimes worth working for organizations with onerous confidentiality rules.

  10. This _may_ be about narrative and spin-it-our-way-or-else control. I realize that we were all told to “always follow the money” but recent encounters of the 3rd kind have impelled me to believe money is not as important to THEM as it is to You.

  11. I worked for decades in Information Technology (aka Computer Networking). A number of years ago, suddenly my boss produced a document and wanted all of us departmental employees to sign it ASAP. Well, that piece of paper wanted us to sign away any and all rights for ANYTHING we may have invented, even if we invented it at home on our own time, and EVEN IF IT DIDN”T HAVE ANYTHING TO DO WITH COMPUTERS!!! I told my boss, NO, I WON’T sign that!

    For one thing, I play a lot of board games, and have come up with game variants and play-aids for various games that didn’t have anything to do with my job. I was damned if I was going to sign away the rights to those! I’m also a model railroader, and I’m also not going to sign away any rights in the model railroading area. I’m also a would-be author, and once again, I wasn’t going to sign away any rights. I also have a Computer Science degree, and if I wrote any programs to help any of my hobbies, and even if I were to publish them for money, that’s none of my employer’s business!

    Well, after I objected, then the rest of the department got emboldened, and they all also refused to sign that horrible, horrible document. And then the boss quietly dropped the whole thing, as if it had never happened. Of course, my boss probably had some higher up suggest we all sign that. It probably came from “Human Resources,” even though no humans work in the Human Resources department!

    1. I understand Screwtape works in Human Resources for the Chief Infernal Executive nowadays.

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