News, reviews: dealing with newspapers and magazines (original) (raw)
Article by leading literary lawyer Nicola Solomon published in The Author of Spring 1997. Formerly a deputy district judge and partner of Finers Stephens Innocent, in 2011, following the resignation of Mark Le Fanu, Nicola became the General Secretary, and later the Chief Executive of the Society of Authors. She has kindly given Akme permission to publish this article, which is reproduced without any editing or comment. Links: SoA advice articles - Solomon podcast.
Authors used to dealing with book publishers are often fazed when asked to write for newspapers or magazines. The pace is so much quicker, it is very rare to get a contract and they do not know the standard terms of the industry or the pitfalls to watch out for. Furthermore, custom and practice is very different in the two industries. I frequently advise both authors and journalists and this article is written from experience of some of the major problems in practice.
Confidential Ideas
If you have a good idea for an article be wary of discussing it with a newspaper or magazine editor without proper safeguards. Clients have often phoned an editor with a great idea for an article and later found a piece on that theme written by someone else. Editors are like magpies who take their ideas from everywhere. Your idea may be covered by the law of confidence but unless you had given it in a sufficiently detailed form or can point to individual elements emanating from you it is extremely hard to prove that your idea was stolen
Unsolicited Articles
If you send an unsolicited manuscript to a book publisher then, even if you don't send a covering letter saying that the idea is confidential, the publisher does not have a licence to use your work or the ideas in it without reverting to you and agreeing terms. However, if you submit a unsolicited article to a newspaper or magazine it will be assumed that you are giving a licence to use that article for payment of a fee (including reasonable editing). Often you only hear from the paper when you get proofs or, even worse, when your work appears in print. Therefore always submit unsolicited articles under cover of a letter which explains that the piece is sent in confidence and that you are sending it on the basis that the editor may be interested in publishing it but they have no permission to use it without first agreeing. If you do not do this and your article is used the only recourse you are likely to have is to be able to sue for the fee that the newspaper customarily pays for similar unsolicited articles.
Commissioned Articles.
Once you are commissioned for an article it is rare to be given a written contract. Terms are usually agreed over the telephone when the article is commissioned. Make sure that you agree the following on the telephone and that you confirm in writing:-
Authority of Commissioning Editor.
Ensure that the commissioner has the right to commission your work and agree a fee. Check at the front of the magazine to see if that person is named as an editor or commissioning editor. Many editors work freelance and there is a high turnover, so the person who commissioned your work may have disappeared by the time the work is submitted, and unless you have a formal commission in writing you may find it extremely difficult to obtain payment.
Full details and length of work.
Newspapers and magazines have strict guidelines as to the number of words they need for an article. It is also helpful if you have read the newspaper or magazine involved so that you are familiar with the type of article you are being asked for and its length, tone, and likely audience. Submitting an appropriate article means less risk of rejection.
Fee
Newspapers and magazines often have standard fees (and they are quite low) for articles although it may be possible to negotiate these upwards. The Author magazine regularly publishes guidelines on fees for freelance work. If the research for the article will involve you in expense you should ask if the magazine or newspaper will pay these expenses, agree the limit of the expenses and, if possible, arrange for them to be paid up front.
Insurance
If the research for the article is likely to expose you to danger or cause you loss you should check if the newspaper or magazine will insure you. Sometimes you can be added to their insurance policy at a fairly low cost. Similarly if your article is likely to be defamatory you might wish the newspaper or magazine to arrange for a libel reading and indemnify you.
Model and Copyright Releases and Interview Copyright
It may be necessary to obtain such releases. You should check with the newspaper whether you or they are responsible for obtaining them.
Time for Submission
Unlike book publishing, dates given for submission of articles are usually vital and if you miss the date then the newspaper would probably not have to pay you for the piece. Agree a realistic date and submit the work on time.
Copyright Byeline
You should ask to be identified as author of the work and let the paper know what byeline you wish to use.
Editing
Many newspapers and magazines feel free to edit your work. Ensure that you have the right to check the proofs and to refuse to have your work published if you don't agree with the amendments made. If the newspaper then fails to send proofs you can claim for breach of contract.
Nature of Licence
Agree how widely your work can be used. Many newspapers (even quite respectable ones) try to take all rights in your work and will then syndicate without notice or payment to you, often receiving on syndication far more than they originally paid for the work. You should state that the licence you are giving is for "first British rights only" which is the right for one time use in print form in the named newspaper or magazine only for first publication in Britain. You should specifically state that you do not give rights for electronic use as many newspapers are now publishing and storing work in electronic form. If your work is likely to be syndicated you could agree to syndication on payment of appropriate fees. This is usually on the basis that the newspaper will share with you 50/50 any fees that it receives. If a newspaper tells you that standard practice is to demand all rights you can ask for a higher payment or say that you will be prepared to grant the further rights but only on being informed of all uses of your work and receiving appropriate fees.
Date of Payment
You should agree when you are going to be paid for the work. In an ideal world you would be paid on commission but this is unlikely unless you are well known. It is more realistic to try to be paid within 3O days of submission of your work but many newspapers and magazines pay only on publication (although the NUJ recommends that you do not accept commissions on this basis). In fact The Author is one of the very few that pays on submission!
Kill Fees
What should you do if the commissioner decides not to use your work? Strictly, if a work has been commissioned you should be paid for it in full whether or not the magazine decides to publish unless your work does not fulfill the terms of commission. However it is common in the newspaper industry to negotiate kill fees, perhaps 50% of the original licence fee in respect of work which is not used. This practice is not fair, particular in view of the low fees that are often paid for such articles, but it is prevalent and you should not be surprised if you come across it.
Continuing Relationships
If you provide a regular column or series or articles for a newspaper or magazine then it is even more important to agree a written contract setting out the details above and, in addition, agree a period of notice for termination of such a relationship so that you can be paid if your column is cancelled.
Finally, as with all contracts, ensure that you are dealing with a financially viable company. There are many small magazines, particularly enthusiasts' magazines, which have a bad payment record but which there is no point in suing because they have no money. It is worth checking this before you write the article
Confirming the Contract
Once you have agreed the terms on the telephone immediately write to the commissioner setting out the terms agreed. It is sensible to ask that they let you know immediately if there are any terms which they do not agree and that otherwise the letter will stand as a formal contract between you. This will help you if later on you have difficulty in obtaining payment or if you find your work used outside the scope of the licence originally granted. You may receive a contract from the newspaper or magazine. Check it carefully. Such contracts often cover matters which you never discussed and with which you do not agree. If so, telephone the commissioning editor immediately and write setting out your amendments. If it is not possible to agree to fundamental terms then do not write the article. One sneaky way which newspapers (IPC is a particular offender) use to obtain rights from unsuspecting authors and journalists is to send your payment with a cheque which is endorsed so that you can only obtain payment if you agree to the terms set out on the attached form, commonly that you grant all rights in your work. Strictly this practice is unlawful and ineffective in law because the contract will have been made at the time you were commissioned and not when you were paid. However common, not to agree terms initially and cashing these cheques without challenging them would suggest that you had agreed to the terms set out by the commissioner. You should therefore object strongly if you are paid a cheque on this basis and seek further advice from a solicitor or the Society of Authors.
Payment
When you submit your article it is sensible to send an invoice for the amount due. At the very least this will remind you to chase the money in due course. It is important to put the correct name of the proprietor company on your invoice, so check this on the inside of the magazine. If you are not paid on the due date then you should chase immediately and keep chasing. Phone the accounts department as commissioning editors are sometimes slow at passing over freelance journalists' invoices. You should also write to the managing director if necessary. Commissioning staff do disappear and it is important to make sure the magazine is aware of your invoice so that it can be dealt with early.
Copyright Infringement
What should you do if you see that your article or part of it has been used elsewhere without your permission? Obviously, you should contact the newspaper to complain and ask for an appropriate fee. However, you should be aware that your ideas or parts of your work may be used by other journalists without your consent if a substantial part has not been used or if there has been fair dealing for the purposes for criticism or review or reporting current events.
The golden rule is to clarify terms at the beginning. The NUJ says in its Freelance Fact pack "it is important for freelances to have the respect of their employers and prospective employers. One certain way of earning this is to be completely professional in all your dealings with them, particularly where it matters most: at the initial stages when fees and commissions are being negotiated." This is extremely good advice, if both parties know what is expected of them in the beginning problems are far less likely to arise.
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