Dear Writer:
As you may know, a number of publications are now issuing contracts demanding that writers sign away past rights for articles already published. Obviously, this practice is deplorable but most important the practice creates an unenforceable contract (along with being a contract of adhesion and undue influence), if a publisher does not offer additional compensation.
It is established precedent in virtually all states that modifying an existing contract requires additional "consideration." While this is not intended to constitute formal legal advice, here are two citations for you to use:
A case in Illinois citation: Flint v. CASA of Du Page County, 285 Ill. App. 3d. 152, 161, 674 N.E.2d 831, 221 Ill. Dec. 38 (1996)
To support the modification or amendment of a contract, there must be consideration. Flint, 256 Ill. App. 3d at 162 (finding that since there was no consideration for an amendment to a contract, the amendment was unenforceable). According to Flint: "Valuable consideration for a contract consists of some right, interest, profit, or benefit accruing to one party, or some forbearance, detriment, loss, or responsibility given, suffered, or undertaken by the other. A promise to do something that one is already obligated to do is no consideration and creates no new obligation"
A New York case:
The case (Ludwig v. NYNEX Service Co., 838 F. Supp. 769 (S.D. N.Y. 1993) says that a modification of a services contract must be supported by consideration (a detriment to the one offering the modification and a benefit to the one accepting the modification). The same rule as in Illinois, and also supported by a treatise by Lon L. Fuller & Melvin Aron Eisenberg, Basic Contract Law (5th ed. 1990, at pps. 157-58)
Note an important point: a contracting party in New York CAN waive "ancillary" or "collateral" conditions, without new consideration. In other words, the essence of the contract requires additional consideration to permit modification, but such side-issues as, say the date of publication, need not be supported by consideration.
In other words, if you are asked to waive any and all rights to articles previously written for a publication, this would be a modification of an essential element of the original "contracts" and, thus, not valid. But be careful about "waiver-type" language. Also, the New York case says that even if a waiver of an essential element of a previous contract is signed without additional compensation, the modified contract becomes valid once the contracting party relies on it, to the contracting party's detriment.
So.... bottom line: You MUST ask for additional compensation before signing any contracts with publishers regarding rights to previously published and paid-for articles; and you should not sign any documents with the words "waive" or "waiver" in them.
Finally, we are continuing to explore many avenues in the wake of the victory in the lawsuit, including intensifying resistance to all-rights contracts.
Jonathan Tasini
President
Copyright © 2000 by National Writers Union.
Last Modified: January 30, 2000.
(Labor donated)