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Freelancers UNITE!

Nick Mamatas

When Time Warner and AOL merged in 2000, they created a massive multimedia company that controlled a significant slice of the ideosphere: television, cable, magazines, Internet, high-speed access, and content – everything from CNN to DC Comics was under its purview. The Federal Trade Commission, the government agency charged with keeping corporate trusts from forming, let the merger go ahead. After George W. Bush gained the Presidency, he had the Department of Justice step back from breaking up the monopolistic software firm Microsoft – the case has ended for now with a slap on the wrist settlement. The image of a trust-busting government protecting the little folks from monopoly capital is no longer on the screens of Big Media. And why should it be…they wouldn't want the little folks getting any ideas.

However, there is one pernicious group of would-be monopolists that the government remains committed to stopping. I'm part of this group, as are most of the other writers and artists listed on the table of contents of this issue of Clamor. Anti-trust legislation keeps us from joining together to demand more money for our work, because we are freelancers. Huge companies can merge together, Voltron-like, to create an even greater menace, but freelancers, an ever-growing segment of the working population, are cowering in the rubble of Voltron's path of destruction.

Legally, freelancers do not have the right to organize. The Wagner Act of 1935 makes union organizing and collective bargaining an explicit exemption from antitrust laws, but only for certain classes of employees. Naturally, independent contractors of all sorts: physicians, writers, consultants, small business people, temps, etc., are not legally employees. Freelance writers are in an odd socio-economic position. We are owners, of a sort; if I write a novel and sell it to a publisher, it is still my novel – I can publish it in another country, sell the film rights to the story, or anything else I am able to sell. I can sell this very article a dozen times over if I can find takers. Because we are owners of intellectual property, freelancers are members of what Marx would call the petit-bourgeoisie. We use our own labor to generate property, then license the use of that property to the big boys. And of course we have to find our own healthcare coverage, pay our own Social Security taxes (employers normally pay half), cannot depend on timely payment from our clients, and have to deal with very uneven incomes and cash flows.

The average member of the Authors Guild earns less than $25,000 and one has to sell work pretty regularly to top markets to even qualify for Guild membership. In the world of fiction, the Science Fiction Writers of America and the Horror Writers Association recently pegged five cents a word as the minimum rate for "professional" publication – half a million words of short stories per year would bring in that $25,000. And this was a raise from the old pro rate of three cents a word.

Mostly members of the working poor, freelance writers and artists are increasingly at the mercy of the new media conglomerates. Time Warner's Time Inc. magazine division demands that writers sign a work-for-hire contract; that means that the article or story or piece of art belongs to them in exchange for a flat fee. Time Warner (they dropped the AOL name, though not the ownership stake) doesn’t negotiate their contracts and doesn't need to. There are plenty of freelancers looking for too little work. The New York Times and Boston Globe, after the Supreme Court ruled that they just cannot reprint old articles in electronic databases, have also demanded that freelancers sign all-rights contracts. Smaller publishers have learned the trick and are introducing language into their contracts that literally break the laws of physics. Here's a clause of a contract I signed in late 2002 for a feature article sold to a men's magazine:

Independent Contractor hereby grants to Publisher all rights of every kind in and to the Works, all translations of the Works and all existing and future derivative works of the Works of every kind (collectively “Derivative Works”), including, without limitation, copyrights, publication rights, distribution rights, reproduction rights, rights to create derivative works, the rights to publish and publicly display the works everywhere in the Universe by any and all means now known or hereinafter invented, and all future created rights.

““Everywhere in the universe,” even though time is not a constant, which means that there is some area in the universe where I have yet to sign this contract. ““All future created rights,”” so after the sun goes supernova and our planet is a floating cinder in space, the alien descendents of the magazine's publisher will own the pheromone-chain excretion rights to my story. It's ridiculous, but try explaining the curvature of the space-time continuum to a small claims court judge. And the assignment was for $3000, or one-sixth of my entire annual income, so of course I signed the contract.

It’s not a surprise that capital has pushed many more people into freelance work through firing and rehiring via temp agencies, outsourcing, the hiring of consultants, and the use of homework and telecommuting. No unions, no collective endeavor, no extra taxes, and no workman's compensation. There were 8.6 million independent contractors and 1.2 million temporary workers in the US in 2002, and trying to organize bring the FTC down on our heads. After all, we might demand healthcare or even a minimum wage in exchange for three billion years of exclusive publication rights. George W. Bush has stated that he believed anti-trust laws should be used only against price fixing, i.e., collective bargaining. Swamping the radio waves with commercial pap; or monopolizing the news, the cables it runs through, and the companies the news "objectively" covers, that's all fine.

The National Writers Union, a local of the United Auto Workers, for eighteen years claimed to be organizing writers. Some of their writer-members were actual employees, some freelancers, and some were emerging writers who had yet to sell anything. Several progressive publications do offer better contracts for NWU members than for other freelancers. Many members also depended on the union for health insurance – though the union plan with Employers Mutual that covered members in California and Illinois turned out to be fraudulent. Election irregularities in 2001 led to a struggle between then-president Jonathan Tasini and reformers among former officials and rank-and-file activists.

In April 2002, Tasini and UAW lawyer Lowell Peterson outflanked the reformers by convincing the US Department Of Labor that the NWU was not a labor organization after all –because many of its members were freelancers. This went against the NWU's long-held position that freelance writers should have the same rights as employees to organize and bargain collectively. Peterson claimed that recognizing the NWU as a union would damage its members. It would transform its freelance members into employees, and thus transfer ownership of their writing to their employers. Only freelance writers own their work; the writings of an employee or staffer are owned by the company. Of course, Peterson apparently "forgot" for a moment that media conglomerates were already forcing work-for-hire contracts on NWU members, and that the NWU wanted union recognition and collective bargaining power for freelancers in order to better be able to fight such contracts.

Tasini left the NWU under fire, but the door was open for UAW loyalists to come in and seize power; the first order of business was a change in the NWU constitution, followed by massive increase in dues ($160 a year, up from $95 for the poorest members) that was passed without a membership vote. NWU's reform leadership has managed to roll back the dues to their old level: $95 for the poorest members.

A reform caucus won NWU's December 2003 elections, but the union is still faced with crippling high dues, dubious legal status, 25% fewer members, and no health insurance plan outside of New York State. The classic labor movement answer is to fire up the struggle and get some gains back from the bosses… but freelancers still can't organize without running afoul of antitrust laws. The NWU and number of professional author and artist associations have thrown their weight behind a piece of legislation called the Freelance Writers And Artists Protection Act, which would create a specific exemption for authors and artists, but predictably the bill has gone nowhere. And even were it passed, and even if the NWU could successfully organize and face down Time Warner, Conde' Nast, and all the rest, the fact is that freelance writers really are in a peculiar class position – they're middle class socially even when they have incomes lower than members of the organized working class.

Freelance writers and artists, unlike other workers, do not work collectively simply by virtue of doing the work. Yes, the bosses make workers compete for jobs and raises and promotions, but they cannot help but arrange the productive power of their workers into a collective force. On an assembly line, office, or store, your job can't get done unless the other employees are also doing their work. And that means you have to communicate and cooperate; people who work together have the opportunity to strike together and fight together. Writers always compete. If your article gets in a magazine, mine may not. If your short story is too similar to mine, an editor may reject yours and buy mine as the superior example. This reality creates a huge barrier to organizing.

Then there is the issue of class position. Writers are still baronets in the kingdom of ownership. Work-for-hire contracts are a form of exploitation, but depending on intellectual property for one's livelihood can mean sympathy and solidarity with capitalism against the working class, even when a fighting, organized working class can offer better protection and more freedom. Too often the fool's hope of writing the next Harry Potter is enough to turn a writer into a mini-mogul preoccupied with property, copyrights, and money. Anyone who has marched on a big demonstration or participated a strike in an urban working-class area knows how that goes. Some shopkeepers open their doors and pass out free food water to the protestors; others lock up and side with the cops and security, selling out their neighbors to protect their shop windows. Whose side are you on? Big Media is making the decision for us.

Karl Marx is said to have joked that it would be easy to eliminate private property under socialism because capitalism itself eliminated private property for almost everybody already. Big Media's all-rights contracts serve to proletarianize freelancers while simultaneously keeping them competitive with one another, aloof from other workers, and unable to legally organize. For every J. K. Rowling who goes up from the middle class to capitalist class, there are tens of writers being pushed into the working class. And yet, too many freelancers identify with Big Media; they think stronger intellectual property laws will protect them from their bosses. On the contrary, laws protecting property only protect those with lots of it.

Copyright and intellectual property laws are becoming ever stricter, spoiling the commons of the public domain. Properties ranging from Sherlock Holmes to Mickey Mouse should be ours by now, but copyright extensions and expansive interpretations of trademark rights have kept them in the hands of the big corporations—though of course corporations like Disney made their billions plundering the public domain for Grimm's fairy tales, historical figures, and classic legends. My own novel Move Under Ground combines the work of Jack Kerouac and H. P. Lovecraft; writing and selling such a book is much riskier now that it would have been twenty years ago. In the same way the agricultural commons were shut down and people herded into the cities to work in the factories created the industrial working class, the enclosure of the commons of ideas is creating an informational working class, one that had better pick up some working class politics very soon.

Freelance writers are now where waged workers were a century ago. The craftsmen and artisans looked down on the unskilled and kept the labor movement divided for too long. We are in the same boat with temp workers; hell, most of the freelancers I know temp more frequently than they write just to keep themselves in ramen noodles and toner cartridges. Freelance writers and artists may face both legal and socio-economic obstacles to organizing, but we're going to have to organize anyway, because Big Media is going for the jugular.

My advice: write about it. Write about the insane contracts. Caricature the bosses in cartoon and prose. Get past the big-money thrill of writing commodified nonsense for Time Warner or Bertelsmann and spread the word in paying indie and underground publications—choose a side and let it be the side of the rest of the world's workers. Let the kingdom of ownership fall into ruin, because we'll be better off living in a better universe, one that our bosses haven't already staked a claim to.

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