Gentry Locke Rakes & Moore employment lawyer David Paxton's advice to the Arts Council's monthly workshop last night was pretty much what you hear consistently from the legal profession: get it in writing.
Paxton, the first lecturer in the series who is not a professional writer or writing teacher, filled an hour with legal advice that detailed freelance writers' rights and responsibilities, leaving them with the strong sense that there is both protection and vulnerability in contracts, depending on how and whether they are negotiated.
Paxton stressed that everything a writer writes as a freelancer belongs to the writer until he signs the rights away, even if the story is the result of an assignment from a publication. Paxton told the group that a written assignment belongs to the issuer, but the work turned in based on that assignment belongs to the writer--unless a contract says otherwise. The lesson: negotiate and don't sign anything you don't agree with just to get a gig because you may not ever be able to get any further mileage from that specific story for hire.
Paxton told the writers that rewriting a story using the same interviews and data that was used for the initial assignment could be problematic unless the entire thrust of the story is different. A warmed-over re-write, in short, is a no-no. "Copyright," he stressed, "does not apply to ideas. What you produce from that idea is what is copyrighted."
Paxton also pointed out that the copyright is automatically assumed for a writer's work, but it is limited in scope and if the writer wants the full coverage of the law, it is best to go through the formal copyright process (not expensive for a single work, but costs can mount on multiple stories or photos). The value of a copyright, he says, lasts a lifetime plus 70 years.
A publisher's willingness to deal with individual freelance writers, Paxton said, "depends on who you are and how badly they need you. A publisher, in general, will want to treat writers consistently, though."
Liability law is one of the most problematic areas for freelance writers--especially those who sign a contract with an indemnity provision that, in essence, relieves the publisher of responsibility and places it all on the shoulders of the writer. Most publishers, he stressed, "will stand behind the writer" in normal circumstances, but the indemnity clause is used in order to make the writer aware of his responsibilities to be as careful as possible.
Liability insurance for individual writers, said Paxton, generally costs about $2,000 to $2,500 a year, but writers associations or groups "can negotiate that down."
Paxton said that if he were looking at publishing a piece in a legal journal he'd do the following:
- Ask "Will I get paid? How much and when?"
- "Refuse to indemnify the publisher."
- "Ask if I will retain rights to the story after it is used because it could generate additional income."
- "Ask what additional use the publisher might make of the story--the Internet, for example--and if I would be paid additionally for that use."