An American Editor

August 30, 2017

From the Archives: The Editor’s Interest: Copyright or Not

(The following essay was originally published on
An American Editor on March 1, 2011. The addendum
was added and published on August 30, 2017.)

A question that sometimes arises, usually when an editor has difficulty getting paid for his or her work, is: What can the editor do to collect payment? I’ve been a long-time advocate of the position that the editor has a copyright interest in the edited version of the manuscript, a card that the editor should play in payment disputes.

We need to step back a little. First, if you are an editor and have a written contract governing the relationship between you and the client, unless the contract specifically provides for your copyright interest, you don’t have one — your relationship is governed by the four corners of the written contract.

Second, the law is unsettled, not clear, or whatever other description you want (muddy, perhaps?) as regards an editor’s interest in the edited manuscript.

Third, the editor’s interest I advocate extends only to the edited version. The author and/or publisher have an unencumbered copyright interest in the original manuscript the editor received; it is only the editor’s edited version in which the editor has an interest — and that interest is wholly extinguished upon being paid in full (i.e., the check has cleared, not the check has been received).

As you can see, I am talking about a narrow interest, not the broader interest that an author has in the manuscript. This narrower interest can readily be extinguished in two ways: (1) payment for service in full or (2) wholesale rejection of the edited manuscript. Acceptance of even a single comma, or corrected spelling — that is, of any single edit — is, in my view sufficient to retain the editor’s interest.

Here is where opinions begin to scatter. I have been told by lawyers for one major publisher that I do not have such an interest. It was a great thrust to the heart by the publisher but, alas, it missed. If lawyers scare you, then this isn’t the position to take. But if you have some titanium backbone, the response is (and the one I made)

I am willing to find out in a court of law. Are you willing to take the chance that the court sides with me, because if you are and if you lose, you will make life exceedingly difficult for your publisher client. Isn’t it smarter to simply pay my bill?

The reality is that it is smarter to pay my bill and not hire me again. It is unlikely that what is owed me is such a large amount of money that the risk of losing in court is worth taking.

Of course, there are steps that should be taken when using this collection method. You should send both an e-mail and a certified-mail return-receipt letter to the client notifying the client of your interest and demanding that they either pay your invoice in full immediately (be sure to give a specific payment date) or

  • not publish the edited manuscript;
  • if they publish the manuscript, that they not sell any copies or distribute any copies;
  • if they sell or distribute any copies, that they place 100% of all receipts in a trust fund pending outcome of litigation;
  • and that they notify the author(s) in writing that you are claiming a copyright interest in the edited version of the manuscript because of the client’s failure to pay for your services, which payment would extinguish your copyright interest.

You’d be surprised at how much influence a screaming author can have, especially if the author liked your work! If you know how to contact the author, you should send a copy of the e-mail and letter directly to the author as well as to the publisher.

Alright, I admit we haven’t yet determined how valid the editor’s claimed copyright interest is, but I’m not sure it is possible to determine its validity in the absence of a major court’s definitive decision (lower court decisions have little precedential value, just witness the 5 decisions on Obamacare). Because it is an open question, I see no problem in making the claim. Personally, I see no problem in defending the claim, either.

A court decision adverse to a publisher and in favor of an editor on this could have significant ramifications for publishers. It would add pressure to pay on time because an editor could prevent release of the manuscript in its edited form. Of course, it could also encourage publishers to add editing to the list of items to be bypassed in the book production process, but doing so would remove one of the few remaining justifications for traditional publishing.

The most likely result would be the influx of contracts. Today, most publishers still work on the handshake basis; that is, they contact an editor and ask if the editor is available, tell the editor what is wanted, and send the manuscript for editing. Sometimes a purchase order is included. In return, the editor edits the manuscript, returns it with an invoice, and receives timely payment. Welcome to the world of 99% of publishers and editors.

The problem is the 1% with whom a handshake is like striking a bargain with the devil who has its fingers crossed behind its back. They promise payment in 30 days and then when the work is done tell you it will be 6 months. Or they tell you how much they love your work until the invoice arrives, at which point they tell you how bad your work is and want you to reduce the invoice. Or they tell you the manuscript is 250 pages and only requires a very light edit when the reality is it is a 400-page manuscript that requires a very heavy edit because the author’s English language skills are virtually nonexistent.

With the 99% of clients a contract or a handshake means the same thing and either will work. With these clients the issue of the editor’s copyright interest never arises. Even if they hate your work, they will pay your invoice on time and just not call again. Paying your invoice costs less than 2 hours of attorney time, so business sense dictates payment.

With the 1% of clients neither a contract nor a handshake has any meaning. It is with these clients that one must be prepared to use the complete arsenal available to collect for work done. Unfortunately, we often don’t discover that a client is part of the 1% until the work is done (perhaps a particularly good reason to bill and get paid in instalments), at which time the 1-percenter thinks we are over the barrel. It is with these clients that the copyright claim is most effective and should be invoked.

Do editors have a copyright interest in the edited version of the manuscript? Maybe, maybe not, but it is a weapon in the editor’s collection arsenal that should not be ignored.

[Addendum added August 30, 2017: If you have a contract with a client that specifically states that you retain a copyright interest until paid in full, that clause is enforceable under contract law — it is no longer a copyright question. Copyrights are transferable and saleable property. Recall that in olden days, by contract, authors assigned copyright to publishers or movie studios or record companies and it was the publisher, the movie studio, the record company that enforced copyright. The change — that is, the author keeping copyright — began in the late 1960s and became standard in the 1990s. However, authors are still free to assign copyright as they wish via contract.

The main essay above focuses on those instances where there is no contractual provision assigning copyright pending payment to the editor. Best practice is to include a clause in your written contract as there is no question about the enforceability of such a clause.]

Richard Adin, An American Editor

May 30, 2016

Sita Sings the Blues on Copyright

 

About 7 years ago, I stumbled on a great music video, Sita Sings the Blues. If you haven’t seen/heard the video, I urge you to do so. It is available free online or for download from Nina Paley’s website. She is its creator.

Regardless of whether you view the movie, you should listen to Nina Paley’s TED talk “Copyright is Brain Damage.” It is a different perspective on copyright by an artist whose work is copyrightable.

Do you agree with Ms. Paley? If yes, why; if no, why not.

Thanks to The Digital Reader for bringing Ms. Paley’s TED talk to my attention.

Richard Adin, An American Editor

March 1, 2011

The Editor’s Interest: Copyright or Not

A question that sometimes arises, usually when an editor has difficulty getting paid for his or her work, is: What can the editor do to collect payment? I’ve been a long-time advocate of the position that the editor has a copyright interest in the edited version of the manuscript, a card that the editor should play in payment disputes.

We need to step back a little. First, if you are an editor and have a written contract governing the relationship between you and the client, unless the contract specifically provides for your copyright interest, you don’t have one — your relationship is governed by the four corners of the written contract.

Second, the law is unsettled, not clear, or whatever other description you want (muddy, perhaps?) as regards an editor’s interest in the edited manuscript.

Third, the editor’s interest I advocate extends only to the edited version. The author and/or publisher have an unencumbered copyright interest in the original manuscript the editor received; it is only the editor’s edited version in which the editor has an interest — and that interest is wholly extinguished upon being paid in full (i.e., the check has cleared, not the check has been received).

As you can see, I am talking about a narrow interest, not the broader interest that an author has in the manuscript. This narrower interest can readily be extinguished in two ways: (1) payment for service in full or (2) wholesale rejection of the edited manuscript. Acceptance of even a single comma, or corrected spelling — that is, of any single edit — is, in my view sufficient to retain the editor’s interest.

Here is where opinions begin to scatter. I have been told by lawyers for one major publisher that I do not have such an interest. It was a great thrust to the heart by the publisher but, alas, it missed. If lawyers scare you, then this isn’t the position to take. But if you have some titanium backbone, the response is (and the one I made)

I am willing to find out in a court of law. Are you willing to take the chance that the court sides with me, because if you are and if you lose, you will make life exceedingly difficult for your publisher client. Isn’t it smarter to simply pay my bill?

The reality is that it is smarter to pay my bill and not hire me again. It is unlikely that what is owed me is such a large amount of money that the risk of losing in court is worth taking.

Of course, there are steps that should be taken when using this collection method. You should send both an e-mail and a certified-mail return-receipt letter to the client notifying the client of your interest and demanding that they either pay your invoice in full immediately (be sure to give a specific payment date) or

  • not publish the edited manuscript;
  • if they publish the manuscript, that they not sell any copies or distribute any copies;
  • if they sell or distribute any copies, that they place 100% of all receipts in a trust fund pending outcome of litigation;
  • and that they notify the author(s) in writing that you are claiming a copyright interest in the edited version of the manuscript because of the client’s failure to pay for your services, which payment would extinguish your copyright interest.

You’d be surprised at how much influence a screaming author can have, especially if the author liked your work! If you know how to contact the author, you should send a copy of the e-mail and letter directly to the author as well as to the publisher.

Alright, I admit we haven’t yet determined how valid the editor’s claimed copyright interest is, but I’m not sure it is possible to determine its validity in the absence of a major court’s definitive decision (lower court decisions have little precedential value, just witness the 5 decisions on Obamacare). Because it is an open question, I see no problem in making the claim. Personally, I see no problem in defending the claim, either.

A court decision adverse to a publisher and in favor of an editor on this could have significant ramifications for publishers. It would add pressure to pay on time because an editor could prevent release of the manuscript in its edited form. Of course, it could also encourage publishers to add editing to the list of items to be bypassed in the book production process, but doing so would remove one of the few remaining justifications for traditional publishing.

The most likely result would be the influx of contracts. Today, most publishers still work on the handshake basis; that is, they contact an editor and ask if the editor is available, tell the editor what is wanted, and send the manuscript for editing. Sometimes a purchase order is included. In return, the editor edits the manuscript, returns it with an invoice, and receives timely payment. Welcome to the world of 99% of publishers and editors.

The problem is the 1% with whom a handshake is like striking a bargain with the devil who has its fingers crossed behind its back. They promise payment in 30 days and then when the work is done tell you it will be 6 months. Or they tell you how much they love your work until the invoice arrives, at which point they tell you how bad your work is and want you to reduce the invoice. Or they tell you the manuscript is 250 pages and only requires a very light edit when the reality is it is a 400-page manuscript that requires a very heavy edit because the author’s English language skills are virtually nonexistent.

With the 99% of clients a contract or a handshake means the same thing and either will work. With these clients the issue of the editor’s copyright interest never arises. Even if they hate your work, they will pay your invoice on time and just not call again. Paying your invoice costs less than 2 hours of attorney time, so business sense dictates payment.

With the 1% of clients neither a contract nor a handshake has any meaning. It is with these clients that one must be prepared to use the complete arsenal available to collect for work done. Unfortunately, we often don’t discover that a client is part of the 1% until the work is done (perhaps a particularly good reason to bill and get paid in instalments), at which time the 1-percenter thinks we are over the barrel. It is with these clients that the copyright claim is most effective and should be invoked.

Do editors have a copyright interest in the edited version of the manuscript? Maybe maybe not, but it is a weapon in the editor’s collection arsenal that should not be ignored.

November 10, 2010

The Internet and Free: A Problem That Will Grow

Cook’s Source magazine has been the topic of conversation in recent days for grabbing a copyrighted article written by Monica Gaudio off the Internet and publishing it without permission or compensation. When Ms. Gaudio complained, she was told that she should be thankful Cook’s Source “improved” the article by editing it and then publishing it with attribution. Cook’s Source‘s editor wrote:

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!

Ignoring the grammatical errors in the Cook’s Source response, which, considering he thinks Ms. Gaudio should pay him for his editing, adds insult to injury, the real question is whether Cook’s Source is simply reflecting a viewpoint that is becoming more commonplace among Internet users.

There has been a lot of uproar in recent years regarding software, book, music, and video “piracy.” On one side of the argument are the copyright holders whose works are “pirated,” and on the other are the consumers who do the “pirating.” (We need to be careful about using the term pirating or piracy because its use implies that the act is wrong. I want to use it here in a more neutral sense, the sense that it is simply a descriptor of action not a conclusion as to whether the action is right or wrong.)

Are the Internet and the posting of material online changing expectations? From what I observe of “consumer” attitudes, the answer is yes. Increasingly, Internet users expect these things to be free and freely usable — a phenomenon that seems to have an inverse relationship to the user’s age; increasingly, copyright has only meaning between companies and not between copyright holders and consumers.

The situation is exacerbated, at least in ebook world, by agency pricing and DRM. I suspect that there is less piracy of books that fall closer to the low-price-DRM-free side of the curve than of books that fall closer to the high-price-DRM side of the curve. The situation is also exacerbated by such things as YouTube and Wikipedia, both of which encourage sharing and free use. Consumers become accustomed to free use of intellectual property. There is also the problem of a decline in understanding among the general population of what constitutes intellectual property that is protectable and why it should be protectable. Is there any reason other than corporate greed to keep extending the protection life of Mickey Mouse?

Ask a teenager whether the sweater in Macy’s is free (or should be free) and the response usually is no, it costs money. Ask the same teenager whether the text on the Internet is free (or should be free) and the answer turns 180 degrees. The major difference, at least for books and text, is that to the upcoming generations words shouldn’t cost because no one owns them. When the discussion turns to copyright, they are either befuddled or they are familiar enough with copyright to say that it was OK to protect words when the protection was limited but with today’s extensions that make the protection nearly permanent, copyright has no meaning. Besides fair use is in such a state of disarray that few people have any understanding of where it ends. (I know of several publishers who unilaterally declare that x number of words constitutes fair use, with x changing depending on the book and the publisher. Of course, x applies to words quoted from books from other publishers, not from their books.)

If you think about it, the protection extensions in copyright law are contrary to capitalism and free market thinking. Society is willing to tolerate a limited extension, but not an extension that makes it more or less a permanent monopoly. Although Monica Gaudio is right that her work is protected by copyright, Cook’s Source is simply reflecting the capitalist-free market position that when copyright exists into absurdity (i.e., forever), it should be viewed as not existing at all.

This dilemma will never be resolved absent a recognition by the producers of copyrighted material that they are encouraging consumers to pirate their work by their demand for never-ending and increasingly restrictive protection. Consumers look at the ever-narrowing of their rights and take the only tack they can — they ignore the restrictions. The Republicans say that the midterm elections demonstrate that the Democrats don’t hear the people, perhaps the Republicans should listen to the voice of the consumer and reverse course on the DMCA and copyright laws — instead of pushing for increased protections and more onerous burdens on the consumer, they should push for a return to the original limits and a more relaxed view of fair use and what consumers can do with material they have legitimately bought.

September 2, 2010

Getting Paid: Things for a Freelancer to Think About

Recently, freelancers have been discussing, yet again, being stiffed by clients and how to deal with it. Along with expressions of sympathy from colleagues, several concrete suggestions were given. It isn’t necessary to repeat those suggestions, which were largely based on having a contract, here; rather, I think we should explore more fundamental concepts.

Some editors require a contract for every project; others do not. The primary distinction between the two groups is who is the client  — that is, the former group tends to work directly with authors and individuals, the latter group tends to work with established publishers.

Editors see the contract as a guarantor of payment, until they learn otherwise. Written contracts are useful only if you are prepared to enforce them; otherwise, a handshake is equally as good as a written contract. In truth, the handshake may be even better because the person who will honor the handshake is the person who wouldn’t breach the contract.

But let’s accept that a written contract is a panacea to the ill of having a client try to evade payment (or an editor not do what was he/she was hired for). The question becomes, what should be in the contract?

Usually what is missing is what I consider to be the most important clause of all: the clause that determines the dispute resolution venue, that is, where any dispute that arises must be settled and how it must be settled.

Ever look at the terms and conditions of your credit cards? How about of your mortgage or auto finance loan? Every lender includes these “venue” clauses and we should learn from the specialists. Your contract can include arbitration terms or straight-to-court terms. If arbitration terms are included, think about who you want to arbitrate. Remember that for it to be enforceable, the arbitrator must be independent — it can’t be your best friend, your business partner, your personal attorney.

I prefer the straight-to-court approach, but I don’t want to travel, so I make the venue — on those rare occasions when I use a contract — my local court, in my county, and specifically not the small claims court. In addition, I make sure that the contract states that it is being entered into in my hometown and that my sole place of business is my hometown. This is important for establishing the court’s jurisdiction.

The clause might read something like this:

This contract is entered into in Poughkeepsie, Dutchess County, New York, which is the sole place of business of Freelance Editorial Services, the “editor”.

Any legal action brought to enforce or terminate this contract or any term of this contract must be brought in the Supreme Court of the State of New York located in Poughkeepsie, Dutchess County, New York, which the parties to this contract agree is the proper venue and the court that has jurisdiction over any dispute regarding this contract.

I also include a clause that requires the other party to be responsible for my legal fees and costs should I prevail in any action brought by any party to the agreement to enforce or break the agreement. Importantly, I also include a clause that makes my state law the law that governs the contract. Imagine having to defend your contract based on the laws of another state or country.

Another important clause is the one that sets up service of process for any action brought under the contract. This is especially important for those who deal with nonresidents. No contract is worth anything if it can’t be enforced and it can’t be enforced if a court can’t get jurisdiction over the person. Consequently, I include a clause that says that service of process will be effective if it is served by the usual court-ordered process on the party at the address below the party’s signature and, in the event that such service is unsuccessful,  on the secretary of state for the State of New York as agent for the party.

OK, that covers getting us to court. But is there something else that should be done? Definitely. No matter how you slice it or dice it, the best clause to have in your contract is the copyright clause.

The copyright clause says that the parties agree that you own a copyright interest in the edited version of the manuscript until you are paid in full for your work. Once you are paid in full, your interest automatically expires but until that time, the author agrees that his work cannot be published in any form that includes any of your work and that should it be published, you must be listed as coauthor and are entitled to 100% of any revenues generated, as well as damages of not less than $xxxx for publishing without your consent.

This clause can be your most potent clause, whether in negotiation with the author for payment or in a lawsuit.

These are things to think about. Adding these clauses can protect you, but can also make it difficult to get clients. I am still a firm believer that a written contract is only good for the honest; the dishonest won’t abide by it no matter what. But balm for the soul, which is what a contract is, is sometimes more important than whether it will be effective.

PS: Don’t just write this contract yourself. Hire an attorney to draft a form contract for you. Your specialty is editing, not law; hire the specialist to do the specialist’s work. Just tell the attorney what you want.

PPS: Don’t be surprised if an attorney says, for example, the copyright law doesn’t say you have an interest. The reality is a contract can contain any terms the parties agree to; whether a court will enforce those terms can only be determined by a court when challenged, so put the clause in anyway. Until the U.S. Supreme Court rules definitively and clearly on a matter, all else is conjecture.

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