Should You Appoint a DMCA Agent for Your Site?

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Thumbs Up PictureFreelance writers don’t just write for their clients. Most have sites of their own where they both post for themselves and, due to the increasing interactivity of websites in general, accept comments, postings and other material from users.

However, this creates a new legal problem for freelance writers, namely what happens when their users violate copyright law.

It might seem odd to be held accountable, even in part, for infringement that your users undertake without your permission or even knowledge, but the law does allow for that to happen in certain circumstances.

To make matters worse, certain copyright holders have been very aggressive in filing such lawsuits. Most recently Righthaven, the company that has filed dozens of lawsuits over republication of content from the Las Vegas Review-Journal.

So, if you allow users to post content on your site, it’s worth taking a moment to understand what your rights and obligations are and, most importantly, how to protect yourself from legal trouble.

So here’s a basic primer on your responsibility as a webmaster and what you can do to ensure that trouble doesn’t wind up at your door. [Read more…]

5 Lessons From the Cooks Source Case for Freelancers

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If you’re a freelance writers, there’s a very good chance that you’ve been following the Cooks Source case for the last week or two.

To recap what happened, Monica Gaudio, a freelance writer, discovered that an article she had written on the history of apple pies had been used in its entirety by a small New England magazine entitled Cooks Source. Though the use was attributed, making it a copyright infringement and not a plagiarism, she was understandably upset and sought an apology and a $130 donation to the Columbia School of Journalism.

The editor of Cooks Source, Judith Griggs, responded saying that everything on the Web was “public domain”, a gross inaccuracy, and said that Monica should pay them as the work required a great deal of editing. Gaudio posted a snippet of that email along with the story to her site and the story proceeded to take off and become a major Internet sensation.

Cooks Source had their Facebook page attacked with thousands of angry comments and the mainstream media began to pick up the story and countless stories were written about it. Some began to search through the rest of Cooks Source’s archives and found over 100 other cases of potential lifting.

Eventually Cooks Source met Gaudio’s demands and made the donation after a somewhat controversial apology. But despite finally admitting that they were wrong, they still decided to shut down.

While this is a pretty big victory for Gaudio (not to mention freelance writers in general) there’s still a lot of lessons here to be gleaned from this case and things to be learned from it.

Though there’s more than could ever be covered in just one post, here are five of the more important lessons to pick up from the whole Cooks Source debacle.

1. Register Your Works

If this case had been forced to go to court, Gaudio would have found herself with an extreme uphill battle trying to claim any significant damages from Cooks Source. Since the work, most likely, wasn’t registered with the U.S. Copyright Office, Gaudio would not have been able to sue until she had first received her registration and, after getting it, would have been limited to actual damages.

With no attorney fees, no statutory damages, a lawsuit would have been completely impractical, even for this level of commercial use.

2. The Power of Crowds

Since Gaudio didn’t have a legal recourse, she turned to the Web and to the mob and proved that getting a crowd to support you can be a very powerful thing and is possible, even for lesser-known creators.

This isn’t to say that it works every time, I know dozens, if not hundreds of authors in similar positions who were unable to muster this level of support despite trying.

In this case, the crowd was able to do what the legal system wouldn’t have been able to, force Cooks Source into doing the right thing. However, the case also raises serious questions about the danger of this method, considering that this could have just as easily been directed at a much less-deserving target.

3. It Was the Response, Not the Infringement

Speaking of the mob, though there was a great deal of disgust at the actual use of the article, such infringements are extremely common and, if Griggs had responded in a manner that was more rational, it is unlikely anyone else would have taken note.

It was Griggs’ response, not the infringement that brought the mob to Cooks Source’s door and eventually brought the magazine down. One simply can not expect this kind of rally for most cases of infringement where such a strong, stupid reaction is not received from the infringing party.

4. Copyright Ignorance Still Runs Strong

While on the topic of Griggs’ response, her mentality that everything on the Web is public domain and free of copyright restriction is, unfortunately, a fairly common one.

Though years of copyright lawsuits, news stories, settlements and other tales have done a lot to at least let people know of the existence of copyright, if not what the law actually says, there is still a great deal of misunderstanding and misinformation to be found out there.

Sadly, as this case also shows, many of the people with misconceptions are people with great positions of trust that can cause large headaches for freelance writers. They aren’t just teens setting up social networking accounts, they’re editors, publishers and large webmasters as well.

In short, they are your clients. Always keep that in mind.

5. There’s Still Support for Copyright

Finally, even though it can seem to be a bleak time for content creators with rampant piracy, plagiarism and other content misuses, there’s still a very strong understanding that copyright is important and that there needs to be fairness in dealing with the works that others have created.

Though the attitudes as to where the lines are drawn may be shifting slowly, the basic principles of rewarding those who create valuable content are still broadly understood and unfairness is still attacked.

In short, it may be a scary time and the Web may be a scary place, but it isn’t quite the nightmare many make it out to be. There is a great opportunity for a bright future online.

Bottom Line

In many ways, the Cooks Source case is very indicative of the climate for freelance authors online. People will, without much hesitation and often fueled by misunderstandings of copyright, will misuse your content without apology, but the broader Web understands that is not fair or correct.

In short, most people on the Web are good, fair and want to make sure that content, whether free or for sale, is treated appropriately. There are those who will misuse your work, but they are a minority and, in most cases, they can be easily dealt with.

Hopefully though, this case will cause people like Griggs to rethink their policies and make better decisions about how they use the content of others. That alone might be something worthwhile to come out of this very ugly incident.

Your Questions

Have a question about the law and freelance writing? Either leave a comment below or contact me directly if you wish to keep the information private. This column will be determined largely by your suggestions and questions so let me know what you want to know about.

Disclosure

I am not an attorney and nothing in this article should be taken as legal advice.

Magazine Editor Steals Article, Admits It, Asks for Payment

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I couldn’t resist it. The Gawker article or the pun in my subheading. Normally, I ignore the good old writer vs editor vs Twitter and Facebook trolls vs media snapshot thing. Or I read it, giggle, and move on with my real work. Today I couldn’t walk away from the trainwreck.  The editor for Cooks Source so brazen, the topic too juicy and, well, it’s Friday, I’m always down for a bit of fluff.

If you haven’t heard, Gawker has a fantastic post about a writer who found out her article was lifted from the original site it was published on and published in Cooks Source Magazine. The writer asked about the piece, informed the editor it violated her copyright and asked for a donation to the Columbia School of Journalism as restitution for the gaffe. I myself would have asked for my standard reprint rate to be deposited in my account, but I appreciate Monica Gaudio’s class.

Anyway, the editor writes back, admits the copyright infringement [corrected], says everyone does it, and that the writer should pony up the costs of having the piece edited. If I didn’t have to write this I’d still be on the floor rolling around in laughter. Now, I would post the entire piece from Gawker here for you to read, but I can’t because that would be copyright infringement [corrected]. So instead, I bring you a cited piece from Ms. Gaudio’s blog post: (see you just say where it’s from, link back and if you use it in a commercial magazine you ask permission and all that silly stuff…)

“Yes Monica, I have been doing this for 3 decades, having been an editor at The Voice, Housitonic Home and Connecticut Woman Magazine. I do know about copyright laws. It was “my bad” indeed, and, as the magazine is put together in long sessions, tired eyes and minds somethings forget to do these things.
But honestly Monica, the web is considered “public domain” and you should be happy we just didn’t “lift” your whole article and put someone else’s name on it! It happens a lot, clearly more than you are aware of, especially on college campuses, and the workplace. If you took offence and are unhappy, I am sorry, but you as a professional should know that the article we used written by you was in very bad need of editing, and is much better now than was originally. Now it will work well for your portfolio. For that reason, I have a bit of a difficult time with your requests for monetary gain, albeit for such a fine (and very wealthy!) institution. We put some time into rewrites, you should compensate me! I never charge young writers for advice or rewriting poorly written pieces, and have many who write for me… ALWAYS for free!”

I’m not sure if it’s the condescending tone or the insult of saying the piece was badly in need of editing or the tongue in cheek ‘very wealthy institution’ remark or the general “seriously?” attitude, but there’s something not very helpful about the customer service at Cooks Source. Unless this is an elaborate hoax, this is a fight I’m popping popcorn to watch.

For our esteemed FWJ readers, here are a few practical tips to keep you out of the legal fire. In fact we have a whole section about these types of issues!

A Word About Plagiarism

The 20 Best Free Anti-Plagiarism Tools

5 Content Theft Myths and Why They Are False

5 Simple Legal Mistakes Freelancers Commonly Make – How Ignorance of the Law Can Cause Big Trouble

This post was corrected from its original post date to reflect that the magazine committed copyright infringement because they did attribute the article to the original writer. They did not, however, ask her permission or submit payment before use.

5 Simple Legal Mistakes Freelancers Commonly Make

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Mousetrap pictureFor a freelance writer, there is a lot of legal ground to cover. Copyright, trademark, privacy, libel and contract law are just some of the areas any freelancer needs to be familiar with to ensure that their rights are protected and they stay on the right side of the law.

The reason is that, in addition to signing deals and getting payment for a service, you are creating content that will be distributed to a global audience. This puts a lot of responsibility on you and everything you right to be accurate, non-infringing and non-invasive.

Still, we are all human and we all make mistakes. Combine that with the fact that many writers don’t fully understand the law or are misled by misconceptions, there is a lot of potential for danger.

With that in mind, here are just some of the more common legal mistakes freelancers made and, more importantly, how to avoid them.

1. Using Google to Find Stock Images

More and more writing contracts are asking writers to locate images to go along with their posts. Certainly not a challenge, but some freelancers use Google Image Search to find the images they are going to use.

Unfortunately, the vast majority of images in Google are copyright protected and are not available for use in such a manner, at least not without paying for a licensing fee.

To make matters worse, the stock photo industry has been on a very aggressive campaign against copyright infringers, and have threatened tens of thousands of sites over the past few years.

Grabbing the wrong photo could easily cost you more than a job, it could cost you thousands of dollars in settlement costs.

How to Avoid It: Use a free stock photo site such as MorgueFile or Stock.XCHNG. You can also look for Creative Commons-licensed images so long as you ensure your client provides proper attribution.

2. Working with a Bad Contract or No Contract

I discussed the dangers of working without a contract in a previous post but the risks bear repeating.

Whenever you write for someone without a contract, the terms of the agreement are not set in stone and, as a result, if there is a dispute the courts have to look at other conversations between you to find out what both sides intended. As such, you may find yourself giving away rights that you never actually meant to and you also have to go through a lot more hassle to find the boundaries.

However, a bad contract can be just as bad, if not worse. If you sign a contract without reading it, you can give away all rights to a work when you didn’t intend and have no real recourse as it was something you agreed to freely.

How to Avoid It: Always work with a contract and always review them carefully. You don’t have to be a legal expert to read your own contracts but, if you have any questions, definitely put it before someone else for a review.

3. Committing Self-Plagiarism

Self plagiarism isn’t illegal in the sense that it’s copyright infringement. After all, the person who would be suing you for infringement would be yourself.

However, most writing contracts, both written and implied, state that there is a need for the work to be original. If you simply turn in something that was written before, it would be a breach of those terms.

Think about it in this context. If the client wanted something you had written previously, they would have requested to buy the license to the work, not asked for a new assignment to be completed. In that context, simply handing in your old work could be a breach of contract and could be very costly in terms of your reputation.

How to Avoid It: Self-plagiarism is acceptable if your client says its ok but always ask and get clearance before reusing old work. Otherwise, you may find yourself at odds with them fast.

4. Being Defamatory

Defamation (libel and slander) might seem to be easy to avoid, but it is rarely so easy.

Most people believe that if you simply stick to the facts of a case you can easily avoid an allegation of libel. However, for example, if you quote someone out of context you can be sued for libel with a good chance that they will win.

If you do freelance editing you can also create a problem by editing a piece to make someone say something they didn’t intend. Even it being an accident may not be a complete defense because, unless the person is a public figure, they don’t have to prove any malice to have a claim.

How to Avoid It: Always speak the truth and stick to what you can prove. Also, remember that opinion can never be libelous though be careful when presenting facts in a way that may give people the wrong impression about what was said and meant.

5. Invading Privacy

There are many ways freelancers can unwittingly invade someone’s privacy, the easiest is through images. If you take a photo of someone without model release, use of their image in an article, especially if it’s on a site that promotes a product or service, could be a misappropriation of their image.

However, freelancers can also find themselves in hot water for publicly disclosing private facts the public has not legitimate interest in. What constitutes private data can vary from case to case and often depends on what has already been made public, but generally it isn’t wise to disclose might be considered embarrassing, isn’t already public and isn’t newsworthy.

How to Avoid It: Always either work with a legitimate stock photo agency for your photos of people or ensure that you get model releases when using photos where individuals could be identified. When writing about people, make sure to talk about information that is already public, preferably they disclosed by the subject, and don’t publicly post anything that they might see an an invasion, especially if it isn’t truly newsworthy.

Bottom Line

Freelance writing is, quite literally, a legal minefield at times. Fortunately, if you approach the industry with honest intentions and work on understanding the law, most of the major pitfalls can be easily avoided.

But even with that knowledge, many unwittingly step into situations that can get them in a lot of trouble and, though nothing comes of most legal goofs, it only takes one angry person with money and motivation to file a suit and completely ruin your life.

With what’s at stake, it’s worth taking a moment to understand the lay of the land just so you don’t walk into any traps.

Your Questions

Have a question about the law and freelance writing? Either leave a comment below or contact me directly if you wish to keep the information private. This column will be determined largely by your suggestions and questions so let me know what you want to know about.

Disclosure

I am not an attorney and nothing in this article should be taken as legal advice.

A Primer on Creative Commons

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Unless you haven’t been paying attention, you’ve probably at least heard of Creative Commons or seen its licenses around on various sites.

However, there’s a great deal of misunderstanding regarding what Creative Commons Licenses actually are, how they function and what their purpose is. For a freelance writer to decide if they should license some of their work under Creative Commons, they first need to understand thse things as well as how to correctly use CC-licensed conten.

Fortunately, the big idea behind Creative Commons is fairly easy to explain and the actual application is even easier to understand. All one has to do is be willing to ty try and learn what the movemement is about. [Read more…]

Derivative Works: Creations That Look Familiar

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Twin OwlsOne of the most common questions I get asked about copyright law is “How much do I need to change in (insert creation name) in order to use it without infringing copyright?”

Whether they are asking because someone reused their work or they are thinking about doing it to someone else, these people are usually asking the wrong question.

Likely misled by rumors of a 10 percent rule or something similar, many think there’s some magic number that lets themselves or others skirt copyright law by creating a new work from an old with minimal work.

Unfortunately, these people often get a very hard lesson about copyright and the way the law works when they try to put their theory into practice. The reason is that the notion of derivative works is far from that simple. However, it’s a right that every creator needs to be aware of and understand, both to help them protect their own work, and to know how to interact with other copyrighted works as well. [Read more…]

How to Register Your Website’s Copyright

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eCO LogoIn last week’s column, I talked about one of the most important decisions every copyright holder has to make, whether or not to register the copyright in their works.

The conclusion of the article was that there is no single correct answer but every creator should be aware of the benefits of registration and make a decision for themselves.

However, if you do decide to register your site, you are immediately faced with an ugly problem. The copyright registration system, despite some recent modernizations, is still geared almost solely toward the types of content that existed in the 80s and 90s. It is a very poor fit for the Internet age and digital-only authors are going to struggle to protect their work.

So how do you register your website? Sadly, the problem may seem intimidating but, if you are willing to put in some time and effort, the process really isn’t that complicated.

Preparing to Register

Before you begin the process of registering your site, you’re going to need to take a few preliminary steps before you can hop on and start filling out forms.

First, you will need to get together your personal information. In particular, you’ll need to find an address that you know you’ll be receiving mail at for about a year down the road, the reason is that, while your registration is effective the day it is sent, you likely won’t get your certificate for many months. This may require some advance planning if you travel a great deal or are planning a move.

However, the main thing you’ll need to prepare is a copy of your site for upload. You can do this several different ways. First, you can export all of the content to a single word processing file or you can spider your entire site and upload it as a series of HTML files in a single zip file.

Generally, which solution you use depends more on whether you are trying to register just the text of your site or whether you also have copyright in the visual works. If you are in the former category, a data export works better for getting just the text. However, if you’re in the latter category, you’ll need to download the whole site to get the images and be careful to exclude images you don’t hold the rights to.

If you choose the first route, WordPress (as well as most other blogging platforms) has a simple export function that will get your content in a more friendly format. However, you will have to convert it to one of the supported file types for the Copyright Office to take it. If you choose to download your entire site, you’ll likely want the aid of a spider to help you download it automatically, HTTrack may be a good place to start as it is both free and something I used repeatedly for this purpose.

Once you have your site in on your computer and in a format that is accepted by the USCO, you should be ready to start filling out your forms.

Using the eCOSystem

The USCO has, for the past few years, worked to move more and more copyright filers to using their Electronic Copyright Office System (or eCOSystem if you enjoy bad government puns). The system allows you to handle the entire registration process online without touching a paper form or mailing in hard copies.

Most of the questions the eCOSystem asks are self-explanatory and the USCO has an excellent tutorial on how to go through the motions (on the link above).

The hardest question you’ll likely be asked is, most likely, if the work is published or unpublished. Though it is tempting to think of all works online as being published, the law is much less clear, defining publication, for this purpose, as, “The distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending.”

For the most part, posting a work online counts as a public display or performance, something that does not qualify as publication. This means that, even though your work may have been viewed by millions of people online it may not be considered published under the law, a classic example of how the copyright code has not caught up with the digital age.

However, the USCO leaves the determination up to the applicant. If you feel it meets the qualifications, go ahead and say that it’s published and give the date in which the last of the works you are applying for appeared on the site (meaning probably sometime very recent).

Once you’ve answered all of the questions (you will likely want to lean on the USCO’s provided help the first few times) you should be ready to pay for your registration, which will cost $35 and is payable via credit card or, if available, a deposit account.

Once that is paid, you will then be instructed to upload your prepared file. However, if the file is too large or if it was originally published in a different format, meaning it isn’t electronic-only, you may be asked to mail in a physical format. However, most sites will easily qualify for digital deposit, making it much easier to get it done.

Then, comes the waiting game. Though it isn’t as bad as it was a year ago when the USCO had a wait time of as long as 9 months for a certificate, it’s still an estimated six month delay. So don’t be surprised if you don’t get your certificate in a few weeks as that is typical.

Also, make sure that the email address you gave the USCO is valid as they will contact you if they have any questions or problems, which are not uncommon with first registrations but are usually easily corrected.

All in all, the process should take about an hour or so for a first time filer and should be followed by a multi-month wait for the certificate itself.

Alternatives

If you’re intimidated by the idea of registering your site, there are alternatives including services such as GoCopyright that will help you register your site (or other work) for a fairly low price.

That being said, as someone who provides assistance with copyright registrations, I tell people that most copyright holders are much better off doing it themselves as most will learn the ropes quickly and will save both time and money. Plus, as a creator, doing it yourself puts you in much better control of your registrations.

However, if you want help, it is out there and, fortunately, not very expensive.

Bottom Line

All in all, registering your site is not that complicated once you’re able to obtain a copy of it that is suitable for upload. The eCOSystem will walk you through most of the actual questions, just be sure to use the help bubbles, and really most of the process is self-explanatory.

The only question that remains is how often should you register. Well, if you consider the work to be published, the answer is fairly easy, once every three months. You don’t have to reregister your older works every time, just be sure to include the new ones.

If you consider it unpublished, the time frame is probably about right to though there is nothing in the law that says that’s the best time to do it. Instead, it’s just a good time frame to do it as it balances protection with practicality.

All in all, registration can be a very good move and can pay great dividends in a dispute. It is not a complicated process though it is one that can be intimidating for new filers.

Your best bet, however, is to dive in, ask questions as they come up and learn the process. You’ll be glad that you did.

Your Questions

Have a question about the law and freelance writing? Either leave a comment below or contact me directly if you wish to keep the information private. This column will be determined largely by your suggestions and questions so let me know what you want to know about.

Disclosure

I am not an attorney and nothing in this article should be taken as legal advice.

Should You Register Your Copyright?

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Ever since the Copyright Act of 1976, which took effect in 1978, copyright has been granted in a work merely by fixing it into a tangible medium of expression. This is a fact we already covered.

However, the fact you have all of the rights over your work does not mean you have the ability to enforce them. In the United States, an additional step is required if you want to take legal action over copyright infringement, you have to first register it with the U.S. Copyright Office.

This has caused many content creators on the Web, including freelance writers, to wonder if they should be registering their works. Unfortunately, this is a very personal decision and there is no real right or wrong answer. Instead, it’s a matter of understanding what is gained by registering your work and deciding if it is worth the time, effort and expense to do so.

However, if you’re a freelance writer and your content is not being considered a work for hire, this is something you need to at least consider seriously as the consequences for not understanding the risks can be dire.. [Read more…]

Is Your Work Really a Work for Hire?

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Many freelance writers don’t fully understand copyright law and mistakenly believe that the fact they are paid for a work means that they don’t hold the copyright in it. In short, since they were hired to do a particular job, that the work becomes a work for hire and they also transfer copyright in the work to the buyer.

However, that is very rarely the case.

Though the language is very confusing, simply being paid to create a work does not make it a work for hire under the law. Rather, the law actually only caused a work to be come a work for hire under a very specific set of circumstances, ones that very few freelance writing jobs actually quality for.

So are your freelance writings works for hire? We’re going to take a closer look at what the law actually says and, hopefully, help you find out the answer for yourself. [Read more…]

Why Joint Authorship is Usually a Bad Idea

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Growing up, we’re taught that teamwork is a great thing and that it brings the best out of all of us. This is why schools love to assign group projects and the idea of working on a team plays a major role in everything we do, all the way through college and into the workplace.

However, as we become adults, especially ones working in a creative field, we see that teamwork is not always the best way to get results. Design by committee is a common way to express designs that stink and expressions such as “Too many cooks spoil the broth” begin to become accepted cliches.

Though teamwork certainly has its place, creating copyrighted works with a co-author or multiple co-authors is not, usually, well-advised. The reason is that copyright law deals with works of joint authorship in a very brutal and confusing matter that can leave you high and dry very easily.

If you create works of joint authorship without a good contract, you could find yourself in a world of hurt. Because, while good friends only rarely make great creative works, good creative works often times great ruin friendships.

Here’s why you should avoid joint authorship if at all possible. [Read more…]

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