The Crafty Writer

A couple of years ago I had one bad month with two copyright infringements in a row. The first came with the morning post. It was a corporate brochure for a holiday company I had recently done an article on for a women’s magazine. I paged through the brochure, wondering if I’d ever be able to pay to go on one of their weekend getaways, when something very familiar jumped out at me. It was my article, word for word, picture for picture, as it had appeared in the magazine. I couldn’t believe it.

Credit where credit’s due

The first thing I checked was whether the magazine and I had been given credit: we had. OK, it wasn’t as bad as I’d initially thought, but my copyright had been infringed nonetheless. I called the commissioning editor from the mag to ask her if she knew about it. She was away on holiday, so I spoke to her assistant.

“But they did get permission from us,” she said. “There was no money involved. We said they could use it in return for giving us a prominent plug.”

“Well no one asked me,” I said.

“Didn’t they use your name?” she asked.

“Yes, but that’s not the point. I didn’t give permission.”

I waited for her to say something. There was silence. “I would have appreciated a phone call…”

“You can talk to the editor when she gets back in a couple of weeks.”

Burning bridges

I was 38 weeks pregnant and had more pressing matters in a couple of weeks. But I decided to put my thoughts down and come back to it later. The first issue was how far I should press it. The magazine was a regular gig, publishing eight of my articles in the last year. It was a niche market women’s mag and not a bad payer. Did I want to burn this bridge?

Infringed copyright

No, but my copyright had been infringed. I knew my rights, even if the magazine didn’t. Which, as I thought about it, seemed to be the problem. They appeared to think that they now owned the rights to the article, when all they actually owned was the rights to the layout – that is how my words and pictures were put together. As the layout was copied exactly, they would have had to give permission for that. But the text of the article and pictures remained my property.

Electronic rights

On the cover page I had printed: ‘First British Serial Rights only’. That gives them the right to print the article only once. Any further publication would have to be negotiated and an additional fee paid. That includes ‘Worldwide Web Reprint Rights’ for publishing on a website or ‘electronic rights’.

Actually, they had previously infringed this right as well. Someone said they’d seen an article of mine on a website for another magazine. On investigation, I discovered that the second magazine is in the same stable as the first. I contacted them about this and they said they buy the rights to publish in any of their magazines as well as electronic rights. As no written contract was ever entered into, this was news to me.

Assumed rights

Unfortunately, this is common practice with smaller publishing houses. Rights are assumed. With most of the bigger titles, including the dailies, you are sent a contract outlining the rights they want to buy from you. Read it carefully. American titles, for example, are fond of buying World Rights for no additional fee, which means you can’t sell it on to anyone else.

The American version of The Writers’ and Artists’ Yearbook and the The Writer’s Handbook is Writer’s Market. It outlines rights asked by each publication. It would be nice if the British books did the same.

Learn from my mistake: if no contract is forthcoming, talk about rights upfront when you negotiate your fee.

Back on track

With the baby on the way and needing to limit my stress, I decided to simply ask the magazine not to give my work away again. I had no response. I wondered if I’d burnt the bridge, but then the following month (August) I received a commission for another article from them. So we seem to be back on track.

But my copyright battles weren’t over. I received an email from a fellow freelance saying she’s found some of her articles plus one of mine on the website of a Dutch magazine. Apparently they had appeared in print form too.

Going Dutch

On investigation, we discovered that the Dutch magazine was a sister publication of a British mag we both wrote for. My friend contacted the British editor while I followed up the Dutch angle. It turned out that the magazines used to fall under the same organisation and that it had been common practice for the Dutch mag, plus sister publications in half a dozen other countries, to reprint translated articles from the British magazine.

Again, no one had told us that when we first started writing for them. However, the British magazine has now become independent, but the Dutch magazine in particular, has continued to poach material. Money was involved, so I wasn’t going to back down. The British editor thanked us for telling him and contacted the Dutch editor. He, apparently, wasn’t happy that his magazine was footing the bill for the Dutch mag’s content. I also contacted the Dutch editor, and in a very polite letter told him that I expected to be paid.

Reprint fees

He was initially defensive, telling me that they’d ‘always done it this way’, but after being contacted by the British editor, he became more conciliatory. We negotiated a reprint / translation fee of 40% of the original.

A month later I was very surprised to be contacted by the Dutch editor who asked my permission to reprint another two articles in future editions and that I send him an invoice ‘at my convenience’. Let me tell you, standing up for my rights was worth almost as much as the invoice.

Top tips

• There is no copyright in ideas: some editors may ‘steal’ ideas by assigning your proposal to a staffer. Although poor form, it’s not illegal.
• There is no copyright in titles: Anyone can call their article ‘Protecting Your Copyright’. They just can’t use the text, as written, without my permission.
• Staff writers / photographers have no copyright: If you are formally employed by a publication, anything you write for them belongs to them, even after you leave.
• Freelance writers / photographers hold copyright even if commissioned: Even if you write regularly for a publication, you still hold copyright unless you sell it to them – only legally binding if a contract has been signed).
• Copyright is held in each country it’s published in: Unless ‘World Rights’ are sold, ‘first rights’ are renewable in each country e.g. First British Rights, First Australian Rights etc. Although an international copyright convention is generally adhered to, copyright law differs around the world, so do your research when moving into a foreign market.
• The Internet is subject to copyright law: although it’s more difficult to defend your copyright online, the same laws and conventions apply. When writing for E-zines, you should only license the editor to use it once i.e. ‘First World Wide Web Reprint Rights’. And this article is still my copyright!
• In the UK, copyright does not have to be registered to apply. However, if you expect your work to be regularly borrowed or reproduced, it may be in your best interests to register with an organisation such as the Copyright Licensing Agency
• Copyright lasts for 70 years after the author’s / photographer’s death.

(first published in Writing Magazine, December 2005)

Related posts:

1. Non-fiction – how to write a proposal