Guest blogger: Sara Suleiman, Esq.
1. DO Understand the Core Concepts of Copyright Law
The legal definition of a copyright is a form of protection for original works of authorship fixed in a tangible medium of expression. Simply put, copyrights deal with movies, music, books, and…articles! Although there are certain legal benefits to officially registering a copyright with the U.S. Copyright Office, registration is by no means required. In fact, copyright protection automatically begins from the moment your work is even created, for both published and unpublished work.
It is particularly important for journalists to understand that copyright protection does not extend to ideas. This means that the specific expression of your idea is copyrightable (the pitch letter or the article itself), but the ideas and concepts within those expressions are not.
2. DON’T Pitch Specifics
The crux of the matter then becomes how freelancers can pitch a story with enough substance for an editor to recognize as a potential article, while also not revealing so much information that the editor or publisher will just write the article on its own. As a starting point, try placing more emphasis on explaining the angle, timeliness, and relevance of the story, instead of explaining the details of the article itself. Or describe the type of sources you propose to use, instead of providing their actual names. Include just enough for the editor to be intrigued; or, if it is a really hot story, promise to disclose the remaining details once a deal is in place.
3. DO Consider a Non-Disclosure Agreement
Use your judgment here, but if your pitch or idea is valuable enough to you, consider asking the publisher to sign a non-disclosure agreement. In short, a non-disclosure agreement (also known as an NDA) is simply a binding agreement between two parties in which one or both parties agree not to disclose certain confidential information. Companies often use NDAs during the preliminary stages of a potential business relationship, which could involve the exchange of sensitive company information like trade secrets. Along similar lines, journalists can use NDAs to their advantage to protect their pitches during their preliminary discussions with the publisher.
Note that parties are often reluctant to sign NDAs, especially when the agreements contain many complicated provisions. As a freelancer, insisting on the signing of an NDA could mean that the publisher will refuse to work with you. Oftentimes, large publishing companies have legal departments that would need to review the NDA and so editors would rather move on to the next freelancer on their list rather than deal with another legal document. The disparity in bargaining power is an unfortunate reality, but it is up to the journalist to decide how far he or she is willing to go to protect the pitch.
4. DO Have a Contract in Place
Other than an NDA, it is extremely rare to have a written contract in place at the time of the pitch. However, after the publisher accepts your pitch, but before you begin work on the article, it is important for both parties to be on the same page early on regarding what exactly has been agreed on.
Sometimes, the extent of the “contract” is simply an e-mail agreement confirming that the freelancer is doing a certain amount of work, completed by a certain date, for a particular price. Other times, publishers will give freelancers onerous boilerplate contracts that contain so many provisions that the freelancer may be tempted to not even read it. READ THE CONTRACT! These contracts are typically one-sided, drafted to suit the needs of the publisher and rarely the needs of the freelancer. Where possible, mark-up the contract with your proposed changes. Odds are that the publisher will push back on many of the changes, but as a journalist bringing something to the table, you should at least try to defend your protectable interests.
5. DO Retain Copyright in the Article
If you are not sure what to look for in the contract, I’d recommend consulting with an attorney. After all, despite the vast difference in bargaining power between a freelance journalist and a large media conglomerate, journalists are nevertheless educated, competent professionals who have the ability to read and comprehend a contract. Even if the contract contained arguably unfair provisions, a court could find that the journalist knowingly entered into the agreement and that it is an enforceable contract.
That said, if you are confident in your contract negotiating abilities, I’ll point out a few important provisions to be aware of.
Pay particular attention to who would own the copyright in the article. As a freelancer, you should ideally try to retain the copyright in the article. Instead, just grant the publisher limited rights to use your copyrighted work. This way you can re-publish the article as your own, and you can have control over whether the article is used in other media or derivative works in the future.
Copyrights are typically owned by the individual who created the work of expression, or in this case, the freelancer who wrote the article. However, if it was a “work-for-hire”, then the copyright would vest in the entity for which the article was written, effectively stripping the freelancer of its control. In other words, the publisher would own the copyright. If there is a “work-for-hire” clause in your agreement, ask yourself whether this is acceptable to you.
6. DON’T Accept Indemnity Clauses
An indemnity clause more-or-less states:
“You herby agree to fully indemnify the publisher from any and all claims, demands, and liabilities (including attorneys fees) resulting from your article.”
Understand the implications of a freelancer agreeing to such a clause. This essentially means that if you have unintentionally included, for example, a defamatory statement or inaccurate facts, in your article, and a lawsuit is then filed against the publisher, you are promising to bear all the blame and costs associated with such lawsuit. This, if agreed to, has the potential to cripple the freelancer.
In actuality, if a sub-editor is altering or removing certain material, context or attribution from the article that the freelancer has prepared, it is the freelancer who should insist on the opposite – that the publisher will indemnify the freelancer from all related claims, etc. If the publisher agrees to this request, make sure that you have confirmed the agreement in writing.
Another option to help protect freelancers from indemnification clauses is to set up a business entity. This way, it is the business entity that is entering into the contract with the publisher, as opposed to the freelancer in its individual capacity. Establishing a business structure like a limited liability corporation (LLC), for example, can help absorb the business debts and liability into the corporation so that the freelancer is not held personally responsible for related costs.
7. DO Include the Copyright Symbol
Although a copyright symbol isn’t legally required to protect your work, place the © symbol in the footer of your article for emphasis, so as to clearly put others on notice that the article is in fact copyrighted. You can further expand on your copyright notice by including additional information next to the copyright symbol, such as the year the work was created and the name of the copyright owner.
© 2016 Sara Suleiman
The information in this post is for general information purposes only. Nothing in this post should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.
Sara Suleiman is an intellectual property attorney and freelance journalist based in Chicago, Illinois. She studied journalism at Northwestern University’s Medill School of Journalism and has published articles in Chicago Lawyer Magazine, the Chicago Daily Law Bulletin, and other trade publications.