Talk me off the ledge here people. (article distributed in flyer without permission)

Off the top of my head I'd say puke on the editor's shoes and call a lawyer, but my thoughts on this sort of case prob aren't worth a whole lot.

Usually when places breech a contract, you contact them quoting the contract and make it clear they broke it and what action you're expecting. But you don't have a contract.

Did you get any kind of written agreement from them (emails, etc.)? If not written, perhaps a verbal agreement about what rights you were selling? I'm not a legal expert, but I think it'll be hard to do anything if you didn't lay down what rights were being sold.

What Polenth said.

If you accepted the money, it's the same as saying "Here's my work, it is yours, do what you will."

I'm sorry, but without signing a contract or making your copyright status known very clearly when selling and getting it in writing, you've lost any right to go after them.

I'm with SFJ on this one. Sorry..but.

What I would do (though I'm not advising this for anyone else) is to write about the publisher of the flyer to warn people against taking them or their word at face value. I'd make them squirm like a slug in salt for using my words without approval.

Getting even with people is - apparently - not the way to make friends. Meh. I'd derive satisfaction from knowing they understood exactly how I felt.

Again, I have to say that getting even probably isn't in your best interest...

SouthernFriedJulie said:

What Polenth said.

If you accepted the money, it's the same as saying "Here's my work, it is yours, do what you will."

I'm sorry, but without signing a contract or making your copyright status known very clearly when selling and getting it in writing, you've lost any right to go after them.

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NO! Sorry to shout but this is absolutely wrong. Copyright can only be transferred in writing. If someone asks you to write an article and you say sure and that is the extent of the conversation you have not sold your copyright nor given them permission to reprint it nor given permission to bind it up in a book later on or put it online or do anything with it apart from print it once.

This is a verbal contact so it comes down to what was said and who said it - but even so, NO copyright can be transferred via verbal contact.

Clearly they wanted all rights and when you didn't hand them over they simply decided to take them. This is illegal.

I suggest sending an invoice directly to the accounts department. Charge four times what you did for the article and call it "Single use reprint rights for flyer distributed X date". Add a note to it stating: "The article "title" is copyright to me (your name). Should you wish to reprint or reuse my article in the future please contact me to negotiate rights first. Regards, ...

The very essence of copyright law is that it is strictly interpreted to the minimum number of rights. This publisher has purchased first use rights and nothing more.

You do not hand over a basket of rights simply because you didn't discuss them. You don't hand over rights simply because "you should have known better" or "it was expected that this would happen".

Copyright is rigorous and strong and protects you against just these kinds of abuses.

NO! Sorry to shout but this is absolutely wrong. Copyright can only be transferred in writing.
...
The very essence of copyright law is that it is strictly interpreted to the minimum number of rights. This publisher has purchased first use rights and nothing more.

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This isn't quite right.

Yes, the very essence of copyright law is that it is interpreted to the minimum number of rights - but that 'minimum number' also includes implied licenses.

For example, if you design a brochure for a tourist attraction, there is an implied license that they can modify the brochure for other promotions, unless you specifically put in the contract that they couldn't.

This precise example was demonstrated in the 'Robin Ray' & the 'Pasterfield .v. Denham' cases.

The guideline is that if a term is needed to give 'business efficacy' to an agreement then it is automatically implied. So if the normal operation for the newspaper is that they permit reprints under their standard scheme, it would not be 'business efficient' for them to have a totally different system just for you.

Therefore it might be seen that is an implied contract that you are agreeing to their normal business practises ... UNLESS you put in writing what the actual agreement was.

Media law is a fascinating subject - it certainly isn't as simple as just saying "I didn't have any agreement in writing, therefore I didn't imply any license".

====

There are some great (and free) textbooks on Media Law out there on the web. They are filled with examples where your argument simply doesn't apply.

To quote one:

In Griggs v. Evans [2005] FSR 31 the court had to decide whether the designer of a new logo for Dr Martens footwear had retained the copyright in the logo for uses beyond use as point of sale material in the UK.

The owners of Dr Martens footwear argued that there was an express or an implied term in their contract with the designer that they would own all the copyright in the new logo.

In this case, the court found that it would never have been contemplated that the designer would retain the copyright in the logo and ordered the copyright to be assigned to the footwear company. The case sets out useful guidance as to when a licence will be implied and when an assignment of copyright will be implied.
..
Provided that the defendant in an infringement action can prove to the satisfaction of the court that the allegedly infringing act was covered by a valid licence, the claim of infringement will fail.

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Mac

(PS: Another thought is that perhaps the newspaper didn't give this community group permission to reprint the article !)

The thing is, she knew that the company took all rights-that's why she didn't sign the contract.

Any judge in his right mind is going to think there is a serious problem with taking the money but not signing the contract. He or she would ask- WHY did you take the money if you did not want to give up rights?

It's like she wanted to leave a loophole but this loophole closed like a noose.

I'm missing one thing - When you didn't sign the contract, did you actively tell them you weren't agreeing to their terms? Or did you just not sign, and it fell through the cracks? Some places aren't too careful with their paperwork, and if you didn't actively speak up they may have not even noticed, and assumed you were on board.

Something you might do next time, which I do often, is simply ask to have a change in the contract. Tell them you won't sell all rights, but here's what you will do. Or, tell them to get all rights they have to pay more. Then get a new contract written up. I've been surprised myself to find most editors will negotiate.

I agree you should speak up now, and I would do so in a polite, friendly manner. If you deal with it professionally you might get compensation, you never know.

Did you get that agreement in writing?

And, have you contacted SHP and said, "Oh, hey, I note you're using this again. Are you planning to compensate me?"

Queen Linda said:

SPH was the editor when I was writing last September. She was replaced in Jan by an editor who put my column on 'hiatus' She lasted 6 months. I have not met the new editor. In regards to this whole mess I will have to go to the publisher, who I have met and is very nice.
Nothing in writing, I know!, verbal agreement with SPH

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Nothing in email?

This info puts a new spin on things, your first post wasn't as clear. I'd speak with a lawyer that has experience in copyright law. Emails may be able to help you out here.

Have you joined the Freelancer's Union? The membership is free and someone there might be able to point you in the right direction.

http://www.freelancersunion.org/index.html

Hmmm, well, can they show where/how they purchased reprint rights but not the copyright? How did you get paid initially?

Specifically, why do they feel they can use articles for promotion purposes? Is that in their usual contract, specifically?

What defines "promotion" to them?

They do not have reprint rights. When they took the article and reprinted it, they did so without the rights.

I'm fairly sure this kind of bs has been done before. Wasn't there some big problem with some newspaper putting archived articles on a CD and claiming it was for promotional purposes? Am I remembering it correctly? The writers all got nothing for their work. Further to that, they were trying to put the archives up on the web and derive more income from them ... and the writers were getting nothing.

I'd write back with something like: "Dear Editor, please be aware that copyright means the right to control copies of work. I control the copyright which means I utterly control all the rights to that work. This means I must give you permission in writing to use my article in any manner. I did not give permission for this usage. While you may see it as promotion, it clearly has a financial benefit for someone along the line. "Promotion" does not cover you misusing my article. By your reckoning, you would be able to print my article anywhere you wanted and call it promotion. After all, that reprint sure is promoting your paper.

You do not have any right to reprint my article. I have attached an invoice for $X, which covers the single use reprint rights for the recent usage. If you wish to reprint any of my articles, please do me the courtesy of contacting me first.

Please be aware that I will defend my copyright most rigorously and that I do expect monetary compensation for this breach of my copyright.

I reserve the right to take further action, including legal remedies, to maintain my copyright."

This sounds more like a conflict of rights than copyright infringement...

Q:

While I sympathize with your situation, I had a negative reaction to your comment, "I got paid a pittance of $400 for a 1400 word article." Quite a few of us (I would imagine) have made considerably less for that amount of work. And some folks just starting out might see that as a very nice paid milestone to shoot for.

Just saying.

In the absence of a contract it strikes me as a gray area. I wouldn't, personally, find it difficult to see these copies as promotional material rather than a reprint or new use.

Unless they were pages ripped out from the original January leftovers, the article was reprinted.

There's no justice like baseball bat justice