S.O.S. -- Calling all copyright mavens

[AuntieEmma[$]]

I already started ranting about this on another thread, but I'm a bit obsessed right now ... so I hope you'll indulge me and excuse any repitition.

Let me present it as a hypothetical:

Years ago, I sold [stuff] to [an individual] who was acting as kind of a middleman between contributors and [a major, well-known reputable company with deep pockets]. [Individual] (who is neither major, well-known, or particularly reputable but who may also have deep pockets) paid me a pittance, but it was not really out of line with what other people were paying for [stuff]. The pittance was pathetic when you consider the effort I put in and (if I do say so myself) the originality of the [stuff], but I was flying high on egoboo, delighted to be paid at all for what I had thought of at the time as a hobby, and really, really excited to be published by [major well-known reputable company].

[Individual] and I were both brand new in this business at the time, in our respective roles of selling and creating [stuff]. We both were starting from scratch. As the years went by, I continued creating a lot of [stuff] for [individual]. He prospered. I did not. At the beginning he used my [stuff] to gain new clients to help him prosper. He made many lavish promises to me about what would happen once he became established; after he became established, most of those promises were broken. This is probably neither here nor there as far as the copyright question goes, but it's part of what I am bitter about.

But back to the copyright question. There was never a formal contract about who owned the copyright. There wasn't even an oral agreement. But I checked my files and found a Contributor's Guidelines sheet which did say that "[well-established Company] owns all rights." When the stuff was syndicated, the "by" byline was my name; there was an "authored by" or "edited by" byline that named [Individual]; and the copyright line named [Individual] and [Company].

Fast forward to the present. [Individual] tells me that he is sending me a check because the [stuff] that I was talking about in the first paragraph above was in the current issue of [huge-circulation, incredibly high-paying publication]. This was the first I had heard of it; he had not notified me or asked permission in advance. I bought a copy of [high-paying publication] to take a look. [Stuff] took up a couple of full pages in a prime spot. [Individual] took credit in big letters (written as "edited by [Individual]"). I got no credit. [Individual] had made some changes (in my opinion, significantly for the worse) and had added on something that probably took a couple of minutes to do, but I would say about 90% of the work was mine. I would say that the check he sent me was about one or two percent of what he received from [high-paying publication], although I'm just making an educated guess as to what they actually paid.

So here's my question. How binding is the statement in the Contributor's Guidelines sheet? Have I, in fact, relinquished my copyright, or is there something here that I could make a fuss about?

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Apologies for being so cagey about the details and leaving out the names, but I'm paranoid about writing the specifics on a web-searchable site, at least until I figure out if I'm going to be making a clean break from these people and if I'm going to take any action against them. (Whether the paranoia is justifiable or overblown is another question ... maybe one for the mental health forum, if we had one. )

I do plan on trekking down to the library (I don't have Lexis access, alas) and doing the research, but (besides just wanting to rant), I seem to remember there being some copyright mavens that hang out here, and I'm lazy and thought maybe I could pick some brains first.

Also, I thought this might be of general interest because of the parallels with our agreement with Epinions, and also the parallels with the role of egoboo and also unkept promises.
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P.S. Editing to add: I haven't done the legal research yet, but I did do a bit of checking to find out what [high-paying publication] actually does pay, so that I could do a little better than just make an educated guess. What I found: They pay $5000 for original articles. For reprints, they pay $1200 per published page, with half of that to the original publisher and half to the writer. What I did isn't exactly an article (it's a feature) and I'm actually not sure if it would be considered an original or a reprint (it was originally published online, but as far as I know, not in print). But just to take the worst-case scenario and going with the lower figure for reprints, it was two pages, so it should have paid $2,400, with half of that going to the writer. Who is me. What I did get paid: $50. (For some reasons I can't get the smilies to work for me, but imagine that the "mad" smiley goes here.)

[pluckyduck]

Auntie, I'm one of those people who thinks she is a copyright maven. I'm too lazy at the moment to look for backup for my knowledge (cough), so I'll tell you what I believe to be true.

The owner of a freelancer's copyrightable work for hire is the freelancer, absent any agreement to the contrary. The owner of an employee's copyrightable work is the employer, absent any agreement to the contrary.

I researched this quite awhile back in relation to artwork, since I often contract that out to freelancers and/or have it done in our in-house art department. I'm often too lazy to have freelancers sign the proper agreement, but if I consider a certain design to be critical, I will go the extra mile and get signed papers.

In my research travels, I've found no difference between copyrightable artwork and copyrightable copy.

As far as claiming copyright, one needn't have done anything other than create the work. For defending copyright, the more documentation that a person has the better. You can lose copyright by allowing publication without consideration or credit...simply by doing "nothing" to defend it, you lose it.

The original document that was signed is critical. It (in my so humble, completely amateur opinion) has to address copyright ownership specifically. The mistake Epinionators make over and over again in discussing these types of issues regarding Epinions is that they confuse licensing rights with copyright....two totally different animals.

So, what exactly and precisely did you sign away? That's the key question..."all rights" could not get more vague...and it sounds as if you didn't sign anything. People can print all kinds of things on all kinds of pieces of paper that are meaningless and the more vague they are, the less defendable they are. Courts favor the originators of work in ownership issues whenever they can.

Furthermore, there's nothing in your hypothetical story that would lead me to believe that the middleman has any rights to the "hypothetical" work whatsoever.

Um, don't cash the check he sent you, and contact the writers union (or whatever they call that place that I'm too lazy to look up).

I am so much an amateur, it's pathetic. Take all advice with a shaker of salt.

Andrea

[pluckyduck]

Forgot to add my favorite lawyer's word! Picked this up when I sued some yahoos for stealing my catalog a few years back:

"This is particularly egregious."

Can't tell you how great that made me feel, hearing our (high priced) lawyers cough up that opinion after I spilled all of the details to them. Yay! They were outraged! (Having somebody steal your stuff, well, it feels like someone came up to you at the ATM and stuck a gun in your back. )

Keep us posted. This is particularly egregious.

Andrea

[AuntieEmma[$]]

Thanks, Andrea. I didn't sign anything. We didn't even discuss copyright, much less agree to anything about it. The only thing is in what I had called the "Contributor's Guidelines," which I just took a look at and is actually called the "Style Sheet." Most of it is concerned with style matters. There are only two lines that relate to copyright: "All [stuffs] must be original and are purchased outright." and "All purchases become the sole property of [big company]."

I don't think I would have any difficulty proving that I'm the originator of the work. And there's no question that I'm not an employee.

I did cash the check already -- the payment was included in a bigger check for payment for other things. I would say that was sneaky for [Individual] to include it like that, except that I don't think that [Individual] is necessarily thinking that far ahead -- in fact, I think he's going to be surprised when/if I take action. And I don't think that cashing the check matters one way or the other, anyway.

There was nothing about licensing, so that part isn't analogous to Epinions. The parts of the Style Sheet relating to ownership were obviously written by someone who didn't know what he was doing -- later versions are a lot more detailed, and go on for about three paragraphs that, in addition to again claiming "all" rights, name specific ones they are claiming, which are basically everything imaginable, including licensing rights. This later version doesn't apply to my situation, as it wasn't in effect at the time, but it does show that somewhere along the way he realized or was told he needed to be more careful. But whether that means that the earlier one is, in fact, invalid is something I don't know yet.

BTW, I took another look at [high-paying publication] and it looks like when they publish articles as reprints they give credit to the original source. No such credit was given for my stuff, which leads me to believe that [Iindividual] sold it to them as original, not previously published. So not only would that be a higher fee, but it's possible that might be an area would I could create some trouble for the people involved.

But I need to do my homework first. And there's also the practical question of whether this is worth going to court over. But if I find that there's something that I could go to court with, with a high probability of winning, that would give me a lot of leverage in making some demands.

It's sort of an unusual situation in that if I go public with this, I might get blackballed completely in the [stuff] business, as gobbling up the copyrights is standard practice there (though I don't know of any other situation where so much money was involved and not paid for a single instance of [stuff]). I could be branded a troublemaker by everybody, not just by [Individual]. So I'm moving slow -- part of what I need to decide is if I'm willing to risk that kind of blackballing. I actually think I am. It may be time for me to move on anyway. But I'm not quite at a firm decision yet, and first I need to see if I really do have a good solid legal leg to stand on.

[AuntieEmma[$]]

Originally posted by pluckyduck
"This is particularly egregious."

Egregious. Heh. That's great. My usual approach to these kinds of things (not that they come up that often) is to be totally understated but impecably prepared. But maybe I should throw around some $10 lawyer words to scare the yahoos.

[pluckyduck]

Well, I hear you, re: the politics of being a rabblerouser. There are times when it is in the best self interest to let things go.

My final amateur opinion is this -- it's my guess that if you decide not to defend this or protest (hypothetically), you'll have given up your rights to the piece forever...not necessarily to the yahoo middleguy, but, the work would end up being fair game for anyone.

This is just a guess. If this had been an actual legal opinion, it would have been rendered with law degree, state license and $500 an hour fee. Hey, if I were a lawyer, I wouldn't be a cheap one.

Andrea
who realizes the absurdity of her advising a lawyer about law, but hey she asked! :p

[kurt_messick]

Make a fuss. Kick up some dust.

The original publication may be sufficiently irritated as to take your side, to avoid liability on their part. And they may want to work with you again.

[AuntieEmma[$]]

Originally posted by pluckyduck
it's my guess that if you decide not to defend this or protest (hypothetically), you'll have given up your rights to the piece forever...not necessarily to the yahoo middleguy, but, the work would end up being fair game for anyone.

That's already happened. [High-circulation magazine], I'm sure, now owns various rights. They take a basket of rights when they purchase stuff. Which particular rights they take depends on whether they purchase it as an original or a reprint, and I don't know which they did in this case.

Actually, for all I know, [Individual] has done this kind of thing before. If he hadn't told me (after the fact) that he had done this, I never would have known -- since I wasn't given byline credit, it's not like somebody would have seen it and told me. One downside, if I push this with him, is that in the future he could simply not tell me if he resells my stuff elsewhere.

Actually, I do know for a fact of at least one instance where it will happen again. They are coming out with a series of books, which will include stuff by a number of people who have worked with [Individual], and I'm sure some percentage of the stuff in those books will be mine. I knew about that already and decided that wasn't worth fighting about, partially because I'd be bumping up against a rather long-established industry practice, and partially because I didn't think the money involved would be that much. But this situation with [high-circulation magazine] struck me as different, because the money [Individual] made there for an individual piece of stuff I believe is a lot higher than it would be for the same single piece that would be one of many in a book.

who realizes the absurdity of her advising a lawyer about law, but hey she asked! :p

Meet the world's laziest lawyer. Really, I have no background in copyright or intellectual property law. Yeah, I can/will do a little crash course, but hearing people's practical experience is always useful. And there are these really striking parallels with Epinions. I do think the hypothetical situation may be more "egregious" though. At Epinions, they promote themselves by saying they offer unbiased opinions by a whole mass of people who are just like Mr. and Ms. Consumer/Researcher. They would never say, "Come to Epinions where you can read the brilliant writing of AuntieEmma, one of the world's top review writers." But that is the kind of thing that [Individual] did say in his promotional material. It's puffery, sure, but it does make me feel more personally ripped-off.

I think the biggest parallel may be with the role of egoboo, and I think that my experience perhaps could be a cautionary tale.

And ironically, in the end, I didn't even get my shot of egoboo, since the egoboo in this situation comes from getting bylines in well-known places -- and I didn't get a byline here. (Individual, as far as I know, has always given me bylines before -- I suspect this may have been done to get around High-Circulation-Mag's policy of paying the writer.) That reminds me ... I have a non-legal question: Do you think it's legit for me to claim resume or other credit for this, as in "Published in [High-Circulation-Mag], even though I didn't have a byline? It is a good credit to have. Actually, I don't see why not, so I guess I just answered my own question.

[AuntieEmma[$]]

Originally posted by kurt_messick
Make a fuss. Kick up some dust.

The original publication may be sufficiently irritated as to take your side, to avoid liability on their part.

That's what I was thinking.

And they may want to work with you again.

The question is, do I want to work with them. Many parallels with Epinions here -- they've gone from being extremely communicative and accessible to dodging their mail. They've made promises they haven't kept. They haven't decreased payments, as Epinions has, but they haven't raised them in a way that would be proportional to how much they've grown -- a difference between Hypothetical and Epinions is that while Epinions is going down the tubes financially, Hypothetical has prospered. [Individual] has claimed he's become a millionaire by doing his middleman thing. Again, puffery and most likely exageration, but I'm sure he's done very well, and all his early promises to share the growth with the contributors have been discarded. The online syndication aspect of this has gone from a handful of sites to hundreds, and they're claiming a million hits per day (puffery, probably, but still).

What he's done is gone from working with a small group of regular contributors (of which I was one) to soliciting contributions from a lot more people, and that's enabled him to keep the payments down. It's egoboo again -- the thrill of those million (or whatever they are in reality) hits -- people get intoxicated with that and aren't going to quibble about the money. For myself, though, the egoboo aspect has largely worn off, and I find myself looking back at years of work for which I've been greatly underpaid.

But will I actually stop working with them? The problem, unfortunately, is that I do need the money at this point, pathetic as that money may be. I guess it really is time to start thinking about doing something else. Maybe I really need to break down and start thinking for real about practicing law. Blech.

[kurt_messick]

The problem, unfortunately, is that I do need the money at this point, pathetic as that money may be. I guess it really is time to start thinking about doing something else. Maybe I really need to break down and start thinking for real about practicing law. Blech.

So long as Epinions was paying something (other than a happy meal pittance) I continued to write for them.

Alas...

[mtbat]

I know absolutly nothing about copywrite laws-however, if you didn't sign anything-isn't it your work? I'd contact the publication and tell them-why didn't you credit ME for MY work when you published this? then let them contact the other person.

Of course, if the amount is under $5000 I'd say-call Judge Judy

[AuntieEmma[$]]

One thing I've considered -- this is a kind of "if you can't beat them, join them" thing -- is to become a middleman myself, since that seems to be one of the few ways to make a decent living in this business. But for various reasons, that doesn't appeal to me. A middle ground might be to keep on doing what I'm doing but to bypass the middlemen and work with potential buyers directly -- for one thing, that would give me a lot more control over the copyrights (even if I can successfully fight Individual over this, it's easier to establish something at the outset rather than have to fight over it after the fact), and also I know for a fact you can charge a lot more. That's something I am seriously considering, though it's going to take a lot of entrepenurial energy that I'm not sure if I have. It's sort of like the difference between writing a review for Epinions versus approaching a publication that has never carried reviews before and convincing them that they should.

Anyway, thanks for letting me rant and ramble. It's actually been quite helpful. EpinionAddicts therapy!!

[AuntieEmma[$]]

Originally posted by mtbat
[b]I know absolutly nothing about copywrite laws-however, if you didn't sign anything-isn't it your work?

I (still) haven't done my homework on this, but I think the question is going to be whether or not there has been some sort of agreement. I don't think that whether something has been signed or not is necessarily a critical aspect of that.

I'd contact the publication and tell them-why didn't you credit ME for MY work when you published this? then let them contact the other person.

That's a very interesting idea. Kind of scary, also. I'd be playing with the big boys there. (I haven't named the publication because of my paranoia about someone stumbling across this on a web search, but I think you may be able to tell what it is from what I've said, or from this: I think it's the highest-circulation magazine after TV Guide.) That would definitely set things in motion. It would also, I believe, insure that I'd never work in this business again. What I was thinking was to deal with [Individual], and have the threat of my contacting the magazine as something that would spur him to deal with me to get rid of that possibility.

But I do like that idea ... it's sort of clean and direct ...

Of course, if the amount is under $5000 I'd say-call Judge Judy

Heh. Seriously, if the amount turns out to be low enough, it would turn out to be a small claims court case, which wouldn't be worth it as the people involved are on the East Coast and I would have to sue them there.

[Trebor1415]

Originally posted by AuntieEmma
I already started ranting about this on another thread, but I'm a bit obsessed right now ... so I hope you'll indulge me and excuse any repitition.

Let me present it as a hypothetical:

Ok, it does make it a little harder to follow the chain of events though because I'm not 100% sure I understand all the relationships involved.


But back to the copyright question. There was never a formal contract about who owned the copyright. There wasn't even an oral agreement.

To cut to the chase. I think this is really your problem. By not getting the specifics nailed down at the begining, I think you might have left "individual" enough "Wriggle room" so that you really wouldn't be able to take action against him.

But I checked my files and found a Contributor's Guidelines sheet which did say that "[well-established Company] owns all rights." When the stuff was syndicated, the "by" byline was my name; there was an "authored by" or "edited by" byline that named [Individual]; and the copyright line named [Individual] and [Company].

That WOULD be your agreement on copywright. ["well established company"] now owns the copyright to that work. I believe the way it works is that since the contributer's guidelines sheet outlined the terms going in, you agreed to those terms when you (or your agent) submitted the work and when you cashed the check. What I don't understand is how "individual" got to own part of the copyright, but that might be because I don't clearly understand the relationship between you and "individual" and "well established company."



Fast forward to the present. [Individual] tells me that he is sending me a check because the [stuff] that I was talking about in the first paragraph above was in the current issue of [huge-circulation, incredibly high-paying publication]. This was the first I had heard of it; he had not notified me or asked permission in advance. I bought a copy of [high-paying publication] to take a look. [Stuff] took up a couple of full pages in a prime spot. [Individual] took credit in big letters (written as "edited by [Individual]"). I got no credit. [Individual] had made some changes (in my opinion, significantly for the worse) and had added on something that probably took a couple of minutes to do, but I would say about 90% of the work was mine. I would say that the check he sent me was about one or two percent of what he received from [high-paying publication], although I'm just making an educated guess as to what they actually paid.

Like I said, I can understand how "Established Company" got to own your copyright because of the agreement you entered into as outlined on the "Contributer's Guidelines." I'm not clear how "Individual" aquired the copyright though. If he is working as your agent (?) it would seem odd for the agent to own a piece of the copyright, and odder for the majority of the money to go to the agent with the writer only getting a small percentage. If "individual" now indeed does hold the copyright, then he is within his rights to resell the piece.


So here's my question. How binding is the statement in the Contributor's Guidelines sheet? Have I, in fact, relinquished my copyright, or is there something here that I could make a fuss about?

I don't know how enforceable the terms on the "Contributer's guideline" sheet are. I would guess that they would be enforceable, but I'm not an expert. I think the bigger issue/problem is the fact that you didn't establish a clear business understanding with "individual" at the begining that would have addressed these issues.
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Apologies for being so cagey about the details and leaving out the names, but I'm paranoid about writing the specifics on a web-searchable site, at least until I figure out if I'm going to be making a clean break from these people and if I'm going to take any action against them. (Whether the paranoia is justifiable or overblown is another question ... maybe one for the mental health forum, if we had one. )

I do plan on trekking down to the library (I don't have Lexis access, alas) and doing the research, but (besides just wanting to rant), I seem to remember there being some copyright mavens that hang out here, and I'm lazy and thought maybe I could pick some brains first.

Also, I thought this might be of general interest because of the parallels with our agreement with Epinions, and also the parallels with the role of egoboo and also unkept promises.
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P.S. Editing to add: I haven't done the legal research yet, but I did do a bit of checking to find out what [high-paying publication] actually does pay, so that I could do a little better than just make an educated guess. What I found: They pay $5000 for original articles. For reprints, they pay $1200 per published page, with half of that to the original publisher and half to the writer. What I did isn't exactly an article (it's a feature) and I'm actually not sure if it would be considered an original or a reprint (it was originally published online, but as far as I know, not in print). But just to take the worst-case scenario and going with the lower figure for reprints, it was two pages, so it should have paid $2,400, with half of that going to the writer. Who is me. What I did get paid: $50. (For some reasons I can't get the smilies to work for me, but imagine that the "mad" smiley goes here.)

My best advice is to PM Redlass and give her the specifics and see what she thinks. She's pretty up on copyright issues. Have her put you in contact with the National Writer's Union and then explain the situation to them and see what they think. You may have more options then I'm not aware of.

Hope this helps,

Rob