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Thread: Freelance woes

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    Freelance woes

    I see other websites doing this with apparently no problem, yet I am still worried.

    For example, BodyBuilding.com gives prizes to article winners and even users the other articles occasionally that do not win. What is to stop some of these people from suing BodyBuilding.com if they use this article somewhere else? What about "reproducing" it again just in a different area of the site?

    http://www.law.duke.edu/journals/dlt...1dltr0025.html

    That has got me paranoid as someone looking to purchase work from freelance writers. How can I be sure that in ten years from now this won't happen to me? Isn't any of this covered by the Berne Convention or anything like that?

    Thanks,
    Chris
    Chris Regnery . Web Administrator | admin@growstronger.com
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    Webwellwisher Robert Warren's Avatar
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    Quote Originally Posted by cmr924
    I see other websites doing this with apparently no problem, yet I am still worried.
    (Caveat: IANAL, and this refers to U.S. law only. YMMV in other jurisdictions.)

    You should be worried. In 2001, New York Times v. Tasini pretty clearly set the rules for electronic distribution of freelance writing in the United States. Basically, if you plan to electronically reproduce the work of your writers in any way (in a database, on the Web, wherever), you need explicit permission of the writer to do so - it's a publication right distinct from print publication authority. That typically means a signed contract, and it means that a writer can choose to sell only very specific rights (First North American, Database Reproduction For Limited Time, etc.) as he or she sees fit. Only by purchasing all rights (i.e. the copyright itself, which definitely requires a signed contract) can you use the work in just any way you like.

    Most nonamateur freelance writers won't sell all rights for less than a mint, if even then. If you really want to protect yourself, either purchase all rights or spell out in the contract that you are purchasing the full right to electronically distribute the material. Just make sure it's explicitly in writing, signed by the author, or it may not be legally binding (and so you'll be exposed by Tasini). I may be wrong, but I believe it's still questionable whether an online click-through form qualifies as explicit permission under the ruling.. I don't know if that's been tested in court.

    If there's a lot of money involved, talk to a good IP attorney familiar with Tasini. Don't take the chance; most working writers know all about that ruling. It was a major one for freelance rights.

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    Thanks for the reply. I do doubt that this would ever become a real issue, but I would like to make sure it never does.

    If it is an oral agreement, what is their exact proof that it ever legally belonged to them? I do not know if I understand exactly how that would occur. If, for example, it is an oral agreement and I am not crediting them at all where I originally put it, since this is not some article directory, how would they be able to prove the work is their own unless they had it copyrighted? I honestly doubt that any prospective clients would copyright each work as that would seem tiresome and unnecessary. Or am I mistaken?

    EDIT: Then again, would I be able to send a contract to all potential freelance writers to purchase all the rights for everything they do for us? That might seem a bit of an overkill but it would be something I might consider.

    Again, thanks for any and all input.

    -Chris
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    In memoriam gold trophysilver trophybronze trophy Dan Schulz's Avatar
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    Never, EVER, agree to something orally. Always get a written contract.

    Also (and this is a usability plus here) make sure the contract is written in clear, concise, and plain English.

    "This contract is the written agreement between John Doe and Shirley McClane. John agrees that he buy Shirley's hedge trimmer for $50" is much easier to understand than "This contract is the complete understanding of the agreement between the Seller, Shirly McClane, and the Buyer, John Doe. Buyer hereby agrees to purchase Seller's hedge trimmer in exchange for the sum of $50 to be transferred via certified cheque, which will be delivered via certified mail with a return receipt via US Mail."

    This is just a standard rule of thumb for your typical run of the mill agreements. There are times when the legalese is not only recommended, but also necessary (such as with copywriting). However, I am a firm believer that the legalese should be as easy for the layperson to understand as possible.

    But do keep in mind that IANAL (I am not a lawyer).

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    Webwellwisher Robert Warren's Avatar
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    Quote Originally Posted by cmr924
    If it is an oral agreement, what is their exact proof that it ever legally belonged to them?
    Under U.S. law, copyright is automatically possessed by the original author, and doesn't necessarily have to be registered to be legal. If the writer wanted to make a legal case of it, the burden of proof would be on you - you could counterclaim that they didn't own the copyright to begin with, but then it'd be judged based on balance of evidence rather than proof. Evidence that the author sent you the work (email, postmark, etc.) would tip the decision in his or her favor.

    Remember that U.S. copyright issues are handled in civil court (i.e., lawsuits) rather than criminal, so copyright legal action isn't about proof. It's about preponderance of evidence.

    I do not know if I understand exactly how that would occur. If, for example, it is an oral agreement and I am not crediting them at all where I originally put it, since this is not some article directory, how would they be able to prove the work is their own unless they had it copyrighted? I honestly doubt that any prospective clients would copyright each work as that would seem tiresome and unnecessary. Or am I mistaken?
    You may or may not be mistaken as to what a client might do, but again, you don't need to register copyright to own copyright. It just needs to be registered before legal action has any teeth. The author can legally register copyright the day before filing suit.

    Again, the author doesn't necessarily have to prove ownership. You have to disprove it. (And I know what you're thinking now - what if you went ahead and registered copyright under your name? What would happen next? Answer: if the author made a convincing case, proof or not, that you stole his/her work, you could be nailed to the wall and hard.)

    EDIT: Then again, would I be able to send a contract to all potential freelance writers to purchase all the rights for everything they do for us? That might seem a bit of an overkill but it would be something I might consider.
    For everything they do, forever? I doubt that would stand up in court. You could draft it as a work for hire agreement, or take your chances with a clickthrough agreement. But without a "signed written conveyance" (the legal term), the best you will ever have are nonexclusive distribution rights, minus electronic distribution (due to Tasini), and a potential legal liability if the author chooses to make a case of you exercising exclusive rights.. there's just no way around that. Signed paper, or you don't own it. Period.

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    Wow! Thanks for all the input. Your posts are worth their weight in gold, that is if you were able to somehow weigh posts...

    Under Tasini, what can I legally do with them? Buy them and then put them under my articles section on my site? I suppose that would be all of them.

    What if I just did that, and then in like a year or so, if there were a few articles I particularly liked I could get a lawyer to draft a contract to buy all the rights to it. Then I would be able to reprint it in any manner, online or offline, without paying royalties, right?

    Thanks!

    -Chris
    Chris Regnery . Web Administrator | admin@growstronger.com
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    Webwellwisher Robert Warren's Avatar
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    Quote Originally Posted by cmr924
    Wow! Thanks for all the input. Your posts are worth their weight in gold, that is if you were able to somehow weigh posts...

    Under Tasini, what can I legally do with them? Buy them and then put them under my articles section on my site? I suppose that would be all of them.
    The issue that was finally resolved with Tasini started with freelance writers who sold print publication rights, sometimes without reservation, and then discovered that their articles had been sold to database compilers like Lexus/Nexus. The publishers (such as NYT, which led to the Tasini ruling) basically argued that electronic distribution was a part of the original right sales, even though the articles were written long before the Web or the databases in question. Some of these articles were dating back decades.

    In Tasini, the Supreme Court ruled against the publishers and determined that electronic rights were distinct, and so the article authors were within their legal rights to demand payment for the new rights (or to withdraw their work altogether). The point of Tasini was to distinguish between print and electronic rights.

    What matters is that you don't purchase an article - you purchase the rights to it, and those rights can be exclusive (only the owner may exercise) or nonexclusive (limited use rights that don't prevent the owner from exercising any of his/her exclusive rights). A signed contract generally isn't necessary to grant nonexclusive rights. But if you're planning to resell the articles, or grant others the right to use them, or exercise any of the six exclusive legal copyrights, you need that contract.

    You can do whatever a signed contract (i.e., the copyright owner) says you can do.

    What if I just did that, and then in like a year or so, if there were a few articles I particularly liked I could get a lawyer to draft a contract to buy all the rights to it. Then I would be able to reprint it in any manner, online or offline, without paying royalties, right?
    As long as it's a legal contract, signed by the copyright owner, and clearly spells out that you are purchasing full copyrights, yes.

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    So, if the agreement at first is entirely oral, as in no contract, what does that mean for me? I can use it anywhere online, but not in any other medium, as in print? Is that pretty much all of it?

    Thanks,
    Chris
    Chris Regnery . Web Administrator | admin@growstronger.com
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    In memoriam gold trophysilver trophybronze trophy Dan Schulz's Avatar
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    It means you need to get it in writing. Just tell the people who you have the oral agrement with that you wish to get the verbal agreement in writing so you can adequately and properly represent and protect your interests as well as theirs.

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    Webwellwisher Robert Warren's Avatar
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    Quote Originally Posted by cmr924
    So, if the agreement at first is entirely oral, as in no contract, what does that mean for me?
    It means that, at very best, you have limited nonexclusive distribution rights. The copyright owner may still exercise any of his/her exclusive rights, including that of no longer allowing you to distribute the article.

    In the print publishing world, just about the only time anyone buys nonexclusive article rights is when a newspaper or magazine wants to do a one-time-only reprint of an old piece. In that particular circumstance, a contract may or may not be involved.. but again, that's a very limited permission, which is why reprint fees are close to the lowest possible fee a writer can get for an article. It's the last stop a writer makes before retiring the thing.

    What it comes down to is this: no contract, no own. And it has to be a legally enforceable contract - something simply saying "This is mine now" won't cut it. If you have an oral agreement, what you have right now is a very limited and nonexclusive reproduction right, which can be taken away at any time by the owner, for any (or no) reason, no matter what you paid for it or how. In addition, any debate later on as to the nature of the agreement will most likely be ruled in favor of the copyright owner.

    Oh, and statutory copyright violation in the U.S. carries penalties of up to $150,000 per instance.

    Get the contract.


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