Check out this Hawai`i Freelancer Alert I received via email, and let me know your thoughts. Do you think this is fair or unfair?

In my opinion and experience this contract is egregious. Writers should be paid per use of their work any time it is “republished,” and should have full rights within 1-3 months after publication. Trying to get writers’ work for free is not a viable business plan for newspapers and magazines.

Letter to Freelancers:

Aloha freelance writers, photographers and other colleagues:

We, the undersigned freelance writers and photographers working for Hawai‘i magazines, would like to alert you to a serious situation that could impact your livelihood.

Pacific Basin Communications publishes several magazines including Honolulu, Hawaii Business, Hawai‘i and hawaii home + remodeling. The company is demanding that its freelance writers and photographers sign a contract that could put the freelancer in legal jeopardy. Because of that, and because we think the contract is unfair in other ways, some of us have refused to sign the contract. We ask you to consider whether you too might wish not to sign the contract.

Under #2, paragraph b, the contract states in part:

“After 12 months, all rights secured in the published Works shall revert to the Freelancer – except that already existing web pages may remain on PBC’s web sites and that PBC will be able to republish (and re-use in the same manner and to just as great an extent) the published Works or portions of it for archival, historical or editorial purposes.”

This word “editorial” may be construed to mean that, at any time in the future, Pacific Basin can re-publish your freelance story or photograph in any of its present or future publications without being obligated to pay you any additional fee. In contrast, other publishers pay additional fees for subsequent editorial use. And the “Fair Contracts Statement” from The Society of American Travel Writers (1,300+ members) says that it “believes in fair and equitable contracts for the services of its freelance members. Payment should be per use, whatever the form or medium.”

Pacific Basin doesn’t even have to notify you that it’s re-using your work.

Even worse than your loss of a fee and control of your work, this agreement could put you in legal jeopardy with another publisher. Here’s how: Pacific Basin’s contract demands exclusive use of your story or photo for 12 months. After that, you may resell your work to another publisher; but, according to Pacific Basin’s contract, the company retains the perpetual right to republish your work at any time in any of its publications, even ones that don’t currently exist.

However, if you subsequently sell the story or photo to another publisher, you will likely have to sign their contract stipulating that they now have exclusive rights to the story or photo for a defined length of time. But, if during this period of exclusivity, Pacific Basin exercises the clause in its contract to republish your work, you will have broken your agreement to grant the subsequent publisher exclusive rights to your work for that time.

This means that you can never again, without fear of a lawsuit, resell a story or photo to another publisher after you’ve sold it to Pacific Basin.

One of us signatories below (Bill Harby) wrote twice to the president of Pacific Basin, John Alves, and explained these concerns, asking him to delete the word, “editorial.” Both times Mr. Alves refused to make any revisions whatsoever to the contract.

So, with all this in mind, we ask you to consider very carefully before you sign the Pacific Basin freelance contract. If you don’t want to expose yourself to a lawsuit, if you don’t feel you are being treated fairly, you may choose not to sign. And if you have already signed this contract, you may choose not to work with Pacific Basin’s publications anymore unless they are willing to amend the contract.

Though we have other issues with the Pacific Basin freelance contract (we’d like to see the 12-month period of exclusivity reduced to 6 months, and to be paid separately for each use in any medium), we only ask for one revision: the deletion of the word “editorial” under #2, paragraph b.

Individually, we freelancers are powerless to affect the way we’re treated by powerful publishing companies. That’s why most Hawai‘i editorial freelance fees have risen so little over the last 20 years or so. But if we act together, we may cause the companies that rely on our skills and talent to treat us fairly.

Thanks for considering. Please feel free to pass this message along to any writers, photographers, bloggers, or anyone else who may be interested.

If you have questions or comments, please feel free to contact Bill Harby at billharby@hawaiiantel.net or 808-985-8558.

A Hui Hou,

Bob Bone, writer
Sally-Jo Bowman, writer
Tiffany Edwards Hunt, writer
Jocelyn Fujii, writer
Bill Harby, writer, photographer
Brad Goda, photographer
Valerie Y.O. Kim, photographer
G. Brad Lewis, photographer
Tony Novak-Clifford, photographer
Robbyn Peck, photographer
Doug Peebles, photographer
Anthony Pignataro, writer
Saul Rollason, writer
Franco Salmoiraghi
Dave Smith, writer
Sophia V. Schweitzer, writer
Kathy Titchen, writer
Cheryl Tsutsumi, writer
John W. White, writer
Christine Thomas, writer

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