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Is It Legal to Publish Articles Without Paying the Writer?

J Kim Wright July 14, 2017

The Conscious Legal Corner answers questions about the law for social enterprises and conscious businesses. Here’s the latest:

Q: I publish an eco-tourism magazine for my local community. People often offer to write articles for me. I don’t really want to pay for the content but I’d like to have it. What are the legal issues I should be thinking about? Like, I wonder about copyrights.

A: I put this question out for comment to several lawyers and the response was surprising to me, but consistent across a field of about a dozen respondents.

What’s in it for the writer? Pay? Copyright?

Rebecca Prien, intellectual property attorney and conscious business coach to solopreneurs wrote:

Most of the contract review and negotiation I do is for clients in the position of the writer in this scenario (whether they are actually writers or corporate consultants) and I see time and time again a language and sense of collaboration in the verbal communication and agreements/understandings of the parties and then a contract that sets out terms that betray that (like no pay + no copyright ownership).

It’s unusual for my clients not to advocate for their worth, but when it comes down to understanding and explaining to the other party why the contract doesn’t value it in the same way, they get stuck. Some actually don’t know the difference between a license and a work for hire arrangement (or that there’s a choice); some know this very clearly but corporate attorneys aren’t listening to them.

Most of the contracts I’ve seen for content contributors are not ‘conscious’ of the value of the work submitted by the contributor. Inevitably, they all propose terms that (1) do not pay and (2) own the copyright, which together are onerous for the writer. I would advise, if the publisher cannot/chooses not to pay for articles, that they not only be clear about that and their intention to exchange articles for circulation/exposure for the author but that they (non-exclusively) license the article from the writer for publication and leave the copyright ownership with the writer. The contract need only be a page long to execute this effectively.

In every one of those situations, once we were able to say to the entity in the role of the magazine here: ‘Of course we know that you value my clients’ work and are looking for a great collaboration; our job now is to make sure the contract reflects that and here’s how from our point of view it currently does not do that.’ Tension (from the discrepancy of oral and written agreements) tends to then release and we’re able to make the agreement match both parties’ clearer understanding.”

Since businesses can’t use volunteers, do you have to pay writers?

Reflecting on our previous question about unpaid volunteers and how it relates to unpaid content, Rebecca continues:

“There is a difference here between a contributor and an intern/volunteer, and I would say that difference is between contributing labor and contributing content, presumably which is already created in some form.

As I understand it, companies run into problems with unpaid interns when the work is not only ongoing but carries out a function essential to the business’s operations. Most often, when I run into these scenarios, an author/thought leader has been asked to contribute a variation of their body of work to a larger publication: (1) that author/thought leader has their own business or other employment; and (2) they’re wanting increased visibility from inclusion in the larger publication. Are they contributing their labor to that publication/organization? Yes, in a sense they are: they had to put labor into creating the content, but most often the author/thought leader is actually putting labor into their own body of work and once the content is created, they can presumably use that content themselves for other reasons, which is they key reason I always insist that my clients license a contribution.

Through a license, it’s not labor the author is contributing, but intellectual property, and the parties can make any agreement they want with regard to that, so long as it’s in writing. I would make a distinction between this and a situation in which a for-profit company wants someone to write for it/contribute on an ongoing basis and/or contribute unique and original content for it for free. That would take on the contours of an unpaid employment situation as opposed to a contribution of intellectual property.”

Clarify your agreement with authors in a written contract.

Here’s another take from Linda Alvarez, intellectual property attorney and author of Discovering Agreement, Contracts that Turn Conflict Into Creativity:

“Whether you pay for the content or not, you still need to put an agreement in writing that lays out the scope of your permission to use the ‘work’ (the person’s written piece) including the way you intend to use it. This helps to prevent misunderstandings and disruptive conflict by clarifying everyone’s expectations and limitations around the use at the outset — and by setting in place a structure for having productive (rather than destructive) conversations if something happens that one or both of you did not anticipate.

As a conscious businessperson, you’ll want to be sure to check that your plan and your actions align with your values – which means asking yourself what your core vision and values are and whether the content, the way you are using it, and way you are in relationship with the writer and your readers is all in alignment and integrity.

Things to consider including in the agreement:

  • Time limits (for example, any limits on how long it can remain online? Any limit on how many reprints if it is being published in physical form?)
  • Geographical coverage (North America only? Worldwide?)
  • Format/s allowed (Digital? Downloadable? Print? Ebook?)
  • Revisions/editing allowed? (Can you use excerpts? Can you edit the work and publish the revised version?)
  • Exclusive rights (only you can publish the piece)? Or non-exclusive?
  • Transferrable license? (Can you give others permission to republish the work?)”

Legal Resources for Hiring Writers

Alvarez recommends these resources:

  • Creative Commons – with your writer you can choose the “license” that works for both of you.
  • Documatica has a helpful “checklist” format that helps you think about what sorts of things need clarification.

And, of course, she cautions that you should consult a copyright lawyer who can help you — even if it is only to review and comment on the proposed agreement. Copyright law in the US has some statutory “default settings” that you may want to know about and use the contractual agreement to switch to preferred settings.

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We get insights from experts that can help you understand the law, but the Conscious Legal Corner isn’t legal advice. For legal advice, talk to a lawyer about your unique situation.

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