[Dixielandjazz] Hold Harmless Agreements

[Don Ingle]

As a writer I am faced with this "hold harmless" clause in many of the
contracts I am given. I cross it out, sign it, and send it on. If they want
to stick to it, then I lose the sale. If they figure out that they need the
copy more than they need to make the house attorney happy, they publish.
This is getting all to common. I did add one line to a contract this past
year and it flew. I added the words, "provided no changes are made to my
original copy." I have yet to meet a magazine editor that won't change
something in the copy he gets...it's 'bred in the bone,' and to make one
correction, change, or dropped lines voids the clause. The article appeared,
and there was, sure enough, a few minor changes.
   Another trick that is frequent added is an "all rights" clause. I never
sign one, as this gives the publisher all rights to my work ad infinitum.
For a full time freelance writer to sell his or her work just once is to go
financially belly up in short order. Your bundle of rights to your work
allows for secondary sales, adaptations, and other means of earning you
additional income.
   The New York Times was doing this illegally by running writer's work on
their commercial-carrying web pages and in other electronic outlets not
covered in the original contract. A group of writers got together, sued the
Times and other publications for copyright violations and won in federal
court. The result is that the Times and most major publications now insert
and "all rights" clause, making it the same as a 'work for hire' agreement
and sale. Many of the major writers once part or the stable at the Times now
no longer submit to the Old Grey Lady -- they refuse to sign away their
rights to future income and  the loser is the reader.
That this is coming to the musical venue scene is just the latest wrinkle in
our litigious age. Shakespeare was right -- "first we kill the lawyers."
Jazz Content: I'll be glad when you're dead you rascal you!
Don Ingle

----- Original Message -----
From: "Bill Gunter" <jazzboard@hotmail.com>
To: <davidpalmquist@dccnet.com>; <dixielandjazz@ml.islandnet.com>
Sent: Sunday, December 15, 2002 8:19 PM
Subject: Re: [Dixielandjazz] Hold Harmless Agreements


> Hi Listmates,
>
> Regarding "hold harmless agreements" I asked:
>
> >How valid would such a document be if the venue could afterward be
> >shown to be totally responsible for somebody's injuries?
>
> And David Palmquist responded:
>
> >Introducing a new, unilateral condition after the contract has been
signed
> >is equivalent to breaking the contract and trying to substitute another
> >contract for it.  If the requirement was not made known to you at the
time
> >you booked the gig, I suspect you would be within your rights to refuse
to
> >sign it when confronted with the agreement at the time you arrived to
play
> >the gig.  If the other party then refused to let you play, they would be
> >breaching your contract.  You would be within your rights to collect your
> >fee and leave.  If they refuse to pay, then you probably could recover
your
> >fee through legal action.
>
> Yes. These are, I think, valid points. And since we (our little trio) were
> unaware of this condition when the gig was booked then the problem was
> shifted to those who booked the gig (the business corporation in
California)
> and the hotel/casino. I think that's why there was really no problem with
> our playing and the discussion between the casino and the company only
> lasted about two minutes. BUT --
>
> I was hypothetically wondering if such a contract is actually legal in the
> first place. Many laws are voted into existance here in California (and
> elsewhere) by the voters only to have the judiciary (local, federal,
state,
> whatever) declare the new law  "unconstitutional" and hence, null and
void.
>
> I think my question was less about breaking a contract than questioning
the
> legality of such a contract. If such a contract could be shown to be
illegal
> then why should it be honored by anyone?
>
> Respectfully submitted,
>
> Bill Gunter
> jazzboard@hotmail.com
>
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