Liability Shifts: How freelancers stand to lose their worldly goods

This update has a very dramatic headline – because a number of publishers are introducing some very dramatic Indemnity and Liability clauses into their writer’s contracts.

Traditionally, publishers have assumed liability for anything they produce. Their major risks are defamation and copyright infringement, and publishers usually pay hefty insurance premiums to protect themselves in the event of such claims.

Publishers also carry a good cover for public liability insurance, in case someone trips on their stairs or burns themselves on their coffee-pot, for example.

There’s a trend for companies and government outfits who hire contractors to require public liability cover, and plenty of publishers now require their freelance journalists to show evidence of public liability insurance (which is a bit nonsensical!)

But more insidious is another trend where some publishers are attempting to transfer all legal liability – including liability for any legal costs – to their writers. This could mean that if a letter is written to a publisher by a potential claimant about an article written by a freelancer, even if that letter lacks any basis, the cost of a lawyer writing a response would, in theory, be charged to the freelancer.

Many writer’s contracts require journalists to make certain warranties. These often include the very reasonable confirmation that the work supplied by the writer is their original work and does not breach the copyright of another party. Some contracts ask for a warranty that any opinions expressed by the writer are honestly held – again, a reasonable request.

These are warranties that most writers are happy to make. Contracts become problematic though, if they don’t include a clause where the publisher also assumes liability for anything published (usually with a provision that the writer has not breached their warranties.)

Another warranty request that is more problematic, though, is the requirement that the writer warrants that they have not knowingly defamed another party or included anything that is not factual.

It’s important that the word ‘knowingly’ or ‘intentionally’ is used in that warranty. It is actually quite easy to unintentionally defame someone, simply by quoting another person’s defamatory statement.

In the publishing process, sub-editors often change or remove material, context and attribution can be altered and headlines and additional text added – all acts beyond the control of the writer.

For this reason, it’s vital that publishers also indemnify the writer against any legal claim. If this clause is not included in a writer’s contract, the publisher may be attempting to transfer all liability to the contributor.  This is not only harsh, it’s also something over which a journalist could potentially lose all their assets.

There are a number of cases in recent Australian legal history where a journalist has been sued personally. Insurance underwriters will simply not cover a writer who does not have the indemnity of their publisher because the writer simply does not have control over the final output.

Legally, anyone deemed “responsible” for the publication of defamatory or otherwise contentious material is liable, so that can include the writer, the editors and / or the publisher.  But if you sign a contract where you indemnify the publisher against any legal action, you may well wear the brunt of a claim – and it’s quite possible you may have to sell any assets you own, including your family home, to meet a legal action.

One freelancer who writes about gardening has now informed their publishers that, as they have been unable to find indemnity insurance of the scope required,  they will now cease making product and material recommendations. This freelancer stated:

“Melodramatic as it may sound, I feel this step is necessary as once large corporates know that freelancers are standing alone on liability, they can simply hit us with vexatious suits to shut us up if we talk about products or practices that they don’t want us talking about as they know we can’t fight back.”

This is not a great outcome for journalism in general.

Australian Publishers Rights Grabs – what to do

Was there a conference that a whole swag of publishing lawyers went to recently? A number of Australian publishers who previously had fair and reasonable arrangements with their writers have started going for ‘rights grabs.’
Several prominent Australian freelancers are now refusing to work locally and are selling their work in the USA, where major publishers do not impose these terms.

What’s a rights grab?

Look out for these in a publishing contract:

* you assign copyright – or worse, assign all intellectual property rights including copyright
* you assign exclusive licence for all media, without a time or territory limit
* you assign moral rights, or allow unconditional consent to alter, reformat and adapt the material for any purpose without including your byline

What can you do?

Option 1: Cross out the prejudicial clauses in pen. You don’t have to add new clauses, because under the Copyright Act, as a freelance writer, you hold copyright and moral rights unless you assign these. Unless you assign other rights, you give the publisher a once-off use of your material in the print or online publication. Sign the (now slightly defaced) contract (keeping a photocopy on file) and mail it to your publisher. Many Australian publishers have accepted such responses in the past.

Option 2: Send your publisher a different contract, which you are comfortable with. You can use this one if you choose.

Publishers generally only need to control exclusive print rights for a certain time period – eg six months after submission, reverting to non-exclusive. Digital rights should always be non-exclusive.

Remember – to resell your work through a syndication agency, you generally need to retain copyright.

Writer’s Rights Explained

Before agreeing to a writing contract, you need to have an understanding of what rights you are negotiating before you can work out what they are worth to you.

If you sell an article to a publication as a freelancer, you are actually just licensing their use of the article. In the absence of any other agreement, you can generally assume that you are selling First Print Rights, in the territory that the publication operates. And once that publication has published the article, then all copyright reverts to you.

Assumption often doesn’t hold true though – and it’s quite astounding how many publishers are clueless about rights.

It’s also quite worrying that there’s a growing trend for publishers to ask for the assignation of copyright or of “All Rights” – when often they will never use these.

If you understand what rights you have to offer, you will be able to negotiate a fair contract that allows the publisher to do what they need to with the story, without limiting your ability to re-sell the work elsewhere if you can.

In general, it’s wise to offer as few rights as possible when you are selling a story to a publisher.

Here’s a rights glossary:

First Rights: These give the publisher a once-off right in a particular media (eg print, broadcast, website) or territory; generally you specify what the rights are ‘first’ in and over what time period:

Media: eg First Print Rights or First Serial Rights: The publisher has a once-off right to put your story in a national print publication and you promise not to sell it elsewhere until they publish. (It’s not a bad idea to add a time-limit to this if you think you will re-sell the story.) Media might include Print, Broadcast, Radio, Digital, Electronic, Database – and there are bound to be more. Don’t forget, once published, all copyright reverts to you.

Territory: You can add territory to your “first print” rights – so you might sell First Australian Print Rights; this still gives you the ability to re-sell First UK Rights, First European Rights, First North American Rights etc etc.

Perpetual Rights: It is a good idea to time-limit rights for 3, 6, 12 or 24 months. When a publisher requests perpetual rights, these won’t revert back to you in your lifetime.

Second Rights and subsequent print or serial rights (also called reprint rights): In this case you’re telling the publisher that while the piece may have been published elsewhere (including on your own website), you’re selling the right to publish it again. Generally you would charge less for these rights.

Exclusive / Non-exclusive Rights: Selling non-exclusive rights allows you to re-sell the material to more than one publication within a territory at the same time. When a publisher asks for exclusive rights, you cannot resell the material in the specified time frame, medium or territory. Try to define a very clear time limit on these rights – and time it from something you have control over, such as the date of submission, rather than something that you have no control over – the date of publication.

Digital Rights: (variously known as electronic rights, electronic publishing rights, online rights or internet or website rights): generally refers to the right to publish on the internet. It’s worth specifying whether this includes an e-mail newsletter, or a database archive or CD or DVD-ROM or other file-transfer mechanism.  Try to be specific. Do Digital rights include iPad rights? Possibly! If you are specific then both writer and publisher are clear about where they stand. Where possible you should aim to sell Non-Exclusive Digital rights.

Archival Rights: generally refers to the article continuing to be made available in back-issue, usually through online databases. It’s worth attempting to time-limit archival rights, if you can.

All Rights
: This is exactly what it sounds like – although you are still the copyright holder, you’ve got no rights left, having relinquished any future rights over the article. And the publisher can resell your work without compensating you.

Copyright: When you sell copyright you are effectively relinquishing all future rights.

Moral Rights: These rights – to have control over the integrity of your work including byline and so on, are enshrined in international agreements and must specifically be relinquished. It’s unwise to do so.

International Copyright Law

There are a number of international agreements which deal with  copyright and related rights.  Most industrialised nations are party to these agreements.

These include:

The Berne Convention for the Protection of Literary and Artistic Works (1886-1970)
The Rome Convention for the Protection of Performers, Phonogram Producers and Broadcasting Organisations (1961)

The TRIPS Agreement (Trade-Related Aspects of Intellectual Property Rights) (1994)

The WIPO (World Intellectual Property Organization) Copyright and Performances and Phonograms Treaties (1996)

The World Intellectual Property Organisation states that the purpose of copyright is:

“To encourage a dynamic creative culture, while returning value to creators so that they can lead a dignified economic existence, and to provide widespread, affordable access to content for the public.”

International agreements about copyright law protect your content worldwide – that’s an important point to remember; and in the internet age, it’s one worth considering before you sign international rights away.

Contracts: What’s the deal?

It’s good business practice to put a contract in place so that the agreement of products or services delivered and money paid is clearly understood by both parties. A contract describes who is responsible for events that might occur in the transaction and protects both of you.

A contract does not have to be a multi-page, complicated document filled with legal jargon and with witnessed signatures.  A simple email stating, “I will deliver x words by x date, you will publish on x date, pay rate is $x to be paid at X time, you have first print rights exclusive for 3 months from copy delivery, OK?” and accepted with an email saying “OK!” from a representative of the publisher, comprises a valid contract.

Freelance journalists and writers who make their living through writing articles for various publishers should use a contract of some kind to define, not just business terms, but the arrangement for their intellectual property. It’s important to state what happens to the work in future – that is, copyright.

That’s where it gets complicated.

For centuries, writers have owned the copyright to their work, which they can license, usually for a fee. Copyright has traditionally lasted for fifty years after first publication and it automatically applies to creative works – you don’t need to do that (c) thing on your work.  ‘Additional rights’ or ‘related rights’ can include things like television or radio rights, digital rights, reprint rights and database rights.

Generally, writers have sold magazines and newspapers ‘First Print rights’ – meaning that they would not sell the work to anyone else until the article first appeared in print.

If you are an employee, copyright of works created while you are at work is retained by the publisher; but freelancers automatically own copyright of anything they produce.