In the midst of negations with SFWA over a CD ROM containing back issues of Dragon Magazine, Wizards of the Coast began shipping a new contract for Amazing Stories locking up all electronic rights and rights to reproduce stories in other new media. The contract also severely limits author’s rights to sue Wizards, requiring them to forego trial by jury.

Seattle-based Wizards of the Coast purchased game company TSR ™ creators of the Dungeons and Dragons roll-playing game ™ in 1997. TSR owned Amazing Stories and Dragon Magazine. Last fall, Wizards announced that they would soon issue a CD-ROM containing all past issues of Dragon.

Initially, they said that they would not pay writers for use of their material in the CD-ROM, despite contracts clearly calling for payment for reprints. (See below.) Many Dragon contributors objected and threatened legal action. SFWA began discussions with Wizards. Shortly before the Nebula Awards earlier this year, SFWA President Paul Levinson announced an agreement with Wizards, under which the publisher would pay fiction writers $100 for use of their stories on the Dragon CD-ROM.

In April, as discussion continued over the Dragon contracts, Wizards began shipping a new contract to contributors to Amazing Stories. My deadline for the main column in this issue prevented me from conducting interviews regarding the issues involved, but here are the critical sections of the old and new contracts.

RIGHTS SOLD

Old Contract: Used for the first three issues of Amazing Stories published by Wizards of the Coast:

Rights, Section 4, Paragraph 2: Wizards of the Coast agrees to pay $xx.xx (xx% of the fee set forth in Section 3) for any other subsequent nonexclusive republication of the Work. No such other republication shall occur, however, without Wizards of the Coast having first obtained the written approval of Seller to do so. The parties expressly agree that the distribution in foreign countries and in the English language of the issue of AMAZING Stories in which the Work is initially published shall be considered to be within the scope of the rights granted to Wizards of the Coast herein, and shall not constitute a republication of the Work for purposes of this Agreement."

The contract clearly calls for payment, and requires prior approval, for any "republication of the work."

The new Dragon contract, dated April 1999 re-arranges the text and adds the critical language. [Emphasis is mine.]

Rights, Section 4, Paragraph 2: Wizards of the Coast agrees to pay $xx.xx (xx% of the fee set forth in Section 3) for any other subsequent nonexclusive republication of the Work. No such other republication shall occur, however, without Wizards of the Coast having first obtained the written approval of Seller to do so. The parties expressly agree that the distribution of the English language version of the Work in foreign countries, OR SUBSEQUENT PUBLICATION IN ANY ELECTRONIC OR OTHER MEDIA NOW OR HEREAFTER KNOWN of the issue of AMAZING Stories in which the Work is initially published shall be considered to be within the scope of the rights granted to Wizards (sic) herein, and shall not constitute a republication of the Work for purposes of this Agreement.

The language grouping publication in "any electronic" or in any "other media now or hereafter known" is perversely broad for a magazine paying only 6 to 8 cents a word. In my opinion, it might well be justified if selling to Playboy for $5,000, but most surely is not justified when selling to Dragon for a few hundred. It is claimed that all writers are whores when they sell their works, but we should not be two-bit whores.

DISPUTE RESOLUTION PROVISONS

There is another critical difference between the two contracts in regard to the resolution of any disputes. The old contract has a single line [Section 9] stating that the agreement will be governed by the laws of the State of Washington. Very simple and clear, the language echoes contract language used by several magazine in the field. The new contract has a long paragraph [Section 9] that repeats the choice of law provision. It then goes much further, with extremely detailed language saying the parties "irrevocably and unconditionally consent" to have any legal actions heard ONLY in the US District Court for Western Washington or the state superior court for King County. [The Seattle area.] The exclusive jurisdiction of these courts is repeated in several detailed clauses.

TRIAL BY JURY WAIVED

The parties then give up one of their fundamental rights as US citizens, trial by jury:

The parties hereby irrevocably waive all rights to trial by jury in any action, preceding or counterclaim (whether based on contract, tort or otherwise) arising out of or otherwise relating to this Agreement or the actions of such parties in the administration, performance and enforcement thereof.

None of the contracts I have seen from the major magazines publishing science fiction and fantasy require contributors to waive trial by jury, including contracts from the Dell Magazines’ Analog and Asimov’s, Sovereign Media’s SF Age and Realms of Fantasy; and the Magazine of Fantasy and Science Fiction. Neither do contracts I have reviewed from magazines in the second echelon of publications in the field.

At the time this was written in mid-July, the SFWA Contracts Committee had not reviewed the new contract being imposed by Amazing. They expect to do so soon, according to chairman Michael Armstrong.

Posted September-26-1999

Primary Rights

The copy of the contract Mohan sent The Bulletin shows an agreement similar to other magazines in the field. The contract that is now back in service purchases "first worldwide publication rights for the use of the Work only in the English language in Wizards of the Coast's magazine entitled AMAZING® Stories."

Anthology Rights Optioned

The contract includes "nonexclusive options" for use in the English-language anthologies "based on Wizards of the Coast's magazines. Wizards of the Coast desires to exercise an option, it will first notify Seller in writing of its exercising of such option and will pay to Seller $xxx.00 (33% of the fee set forth in Section 3 of this Agreement) for" possible anthologies. The anthologies can be in several formats, including "mass-market paperbacks (including reprintings)," a digest-magazine-sized paperback anthology, a standard-magazine-sized paperback anthology, a hardcover anthology, or an anthology published in both hardcover and paperback formats at the same time.

Additional language covers U.S. book club sale of any anthology, with being paid "one half of a pro-rata share of the payments received from the book club, the share being based on the ratio of the amount of money set forth in Section 3 to the sum of such fees paid for all works appearing in the anthology."

Other Reprints:

"Wizards of the Coast agrees to pay $xxx.00 (33% of the fee set forth in Section 3) for any other subsequent nonexclusive republication of the Work. No such other republication shall occur, however, without Wizards of the Coast having first obtained the written approval of Seller to do so."

English language publication of Amazing Stories issues in a foreign country is explicitly allowed, and is not considered a reprint.

Choice of Laws and Indemnification:

The Choice of Laws clause says that the laws of the State of Washington will govern the contact, but the detailed language on court jurisdiction and waiving trial by jury has been dropped.

In addition, the indemnification clause carries language protecting writers, saying that it applies only "so long as judgment is sustained in a court of competent jurisdiction."

While I'd like to take credit for Amazing's reversion to its old contract, I can't. I believe that the change was made before the fall issue of The Bulletin hit the streets.

Kim Mohan wrote, "During the short time that the other document was in use, I know of only one writer who vigorously protested (and that person signed it anyway). We switched back primarily because I wasn't comfortable about using a document that did not serve the best interests of this magazine or the people who contribute to it."

Filed: October 1999

Based in Portland, Oregon., Jim Fiscus has been a freelance writer since 1989 and a member of SFWA since the mid-1980s. He has paid the bills with non-fiction, concentrating on clinical and scientific development in medicine and the politics of health care.

Copyright 1999 James W. Fiscus. Reprinted with permission from the SFWA Bulletin, Fall 1999 and Winter 2000.