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Ellen Alperstein

The good news was that the assignment I'd just gotten from an L.A.-based web site was likely to lead to more work from this publisher.

The bad news was the compensation--an anemic $500 for an article of 2,000 words, wages that when I began my freelance career a generation ago were considered substandard.

Worse news arrived with the delivery of the contract. The job, which required interviews with medical professionals and medical literature research, was to be performed as "work made for hire." That means the creator of the work--me--surrenders her copyright and all subsequent claims to its license. A term that, essentially, renders an independent contractor an underpaid employee excluded from the benefits of employment--Social Security, health insurance and retirement contributions, paid vacations, etc. The creator of a WMFH may not leverage her investment into additional work or even post it on her own web site.

A National Writers Union study determined almost 10 years ago that most writers must average $1 a word to gross $40,000 a year; at 25 cents a word, secondary use rights--reselling the article or an updated version, for example, or including it in a collected work--are critical.

Despite the insulting pay for skilled labor, despite the rights grab that mocks the Constitution, which affords authors the exclusive right "to their respective Writings," I was willing to hold my nose and sign. I hoped to complete the assignment well and quickly for the editor, whom I had known when we both worked at the L.A. Times. I hoped to secure ongoing income and be well-positioned to capitalize on my investments when publishers figure out how to sufficiently monetize the digital domain.

Then came the deal-breaker. Like a proliferating number of contracts I've amended or rejected in recent years, this one put me at unacceptable legal risk, disrespected my profession and presumed that neither mattered.

"The [article] will not violate, infringe, or misappropriate any copyright, trademark, trade secret, right of privacy, right of publicity, or any other proprietary or intellectual property right of any person or entity; ... [it] will not contain any defamatory, libelous, or other unlawful statements, or statements that violate the privacy or similar right of any person or entity; ..."

Writers should be expected and willing to guarantee that our work is original and has not been published previously. We should be willing and able to guarantee that our work, to the best of our knowledge, is true and accurate. But to swear--which is what the contract's warranty clause demands--that my work does not breach privacy or any other legal right is to know all the laws of all the jurisdictions in which my work appears. In the electronic era, that's anywhere from Van Nuys to Venus. I don't know what's an unlawful statement on Venus. I don't even know what it is in Finland. Or Wyoming. I can't warrant that my sentence structure, the sources I quote, won't cause someone to claim I made an unlawful statement. If publishers won't let me edit the unknowable into the reasonably knowable, they're telling me to lie.

The editor wouldn't discuss it; the publisher, like so many others, was intractable.

I also won't sign clauses such as this one common in freelance writing contracts: "Freelancer ... indemnifies and holds [publisher] harmless from and against any and all liabilities, costs and expenses..."

Anyone can sue for anything, and no matter how outlandish or bogus the claim you still must pay to respond. When a publisher reserves the right, as many do, to edit, revise, cut or adapt your work without your approval, warranty and indemnification clauses leave you exposed not only for your alleged mistakes, but theirs. Even if you're guilty of nothing but being stupid enough to pursue a freelance writing career, you can be liable for the settlement a publisher negotiates in order to avoid even a frivolous lawsuit.

Only writers who regularly cover crime or controversial topics, or have a high profile that invites exploitation generally carry personal liability insurance. But publishers carry it as a cost of doing business. How dare they shift this burden to those least able to shoulder it.

Why is this relevant to anyone outside of our niche business? Why should you, dear reader, care?

As the Founding Fathers recognized, independent writers are vital to the free flow of ideas and information that fuel a democracy. Do you want all the information necessary for informed analysis of a situation or topic, or only what a timid writer working on a controversial story self-censors for safe consumption? When the hungry maw of the Internet must be fed, if sustenance is costlier than filler, are you OK with providers who just pass the Fritos and sign on the dotted line?

I don't blame the lawyers who draft these egregious documents for their clients. The blame for writers making unholy contractual promises falls on three parties: publishers unwilling to acknowledge the value of professional work; editors unwilling to stand up for their most valuable resource for fear of making waves in a shaky economy and troubled industry; writers willing to sign these death warrants of their profession.

We all must compromise our demands in order to navigate the rocky terrain of the electronic media market. We are responsible for our choices. Willful ignorance is unacceptable in a profession obliged to find and tell the truth. Many editors and writers of my acquaintance have never read the contracts they respectively distribute and receive. Some can't define "indemnification." Some refuse to investigate its implications, and many writers play the percentages, knowingly establishing a precedent of abuse.

I want editors who value expertise and professional relationships at least to discuss objectionable demands with their publishers. I want writers to say "no," to stand up for themselves, their profession and the society that needs them. But if you make a decision to work under horrifying conditions, at least do so with the full consciousness of whom it affects and why you're doing it. At least grapple. Nothing good comes of blind submission.

Ellen Alperstein is a writer based in Santa Monica.

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