An Unnecessary Lawsuit

Know Your Rights

Long ago, when I left the San Jose Mercury News and started freelancing, I was warned by fellow members of the American Society of Journalists and Authors (ASJA) that I was never to write-for-hire and never to write for free because both options erode the very foundation of monetary stability and intellectual property integrity the ASJA fights to uphold for writers everywhere.

However, as technology changed the structure of media outlets, I discovered less and less favorable opportunities for freelancers existed. Many publications, moving away from print and to online only, sought plenty of written material for little or no pay. People who normally would not have been submitting written material suddenly discovered the ease of breaking into an industry that previously had been dominated by college-educated, union-membership writers with extensive experience who required a living wage in order to produce quality work on a tight deadline. As more and more inexperienced writers submitted written material for free, publications suddenly had a plethora of material to choose from and from which they did not have to purchase rights. They could select the best of the best and offer exposure instead of monetary compensation. Those writers who willingly worked for free were happy to break into a new industry and obtain clips for their resume.

Fast forward to 2012 and the recent judgment by a U.S. district court judge dismissing a class action lawsuit of unpaid bloggers seeking $105 million for blogs they had originally and contractually agreed to write for free in exchange for exposure on The Huffington Post’s website. These same writers who, if they had been members of the ASJA, would have known how to read a contract, what to look for in negotiating the terms of a sale, and if they had questions, they would have had access to reputable legal counsel as part of their membership. These writers would have not allowed themselves to be roped into a class action lawsuit which had no legal basis. It would have saved time, money, and their reputations from the embarrassing publicity that has resulted from the dismissal.

I understand why writers write for free or write-for-hire. When you are starting out in a new industry, you often accept unpaid internships to learn the business. When you are starting out as a freelance writer, you may accept unpaid assignments from reputable publishers in order to build your portfolio in an effort to obtain paying assignments. That’s understandable. And acceptable. When you are an experienced writer in a drought between assignments and unable to pay your mortgage, you may agree to write-for-hire, meaning you assign ALL RIGHTS to your work to the company paying you a flat one-time fee for the writing assignment. That means you cannot re-publish your work anywhere: not on your website, not on Facebook, not on Twitter, because the work (although you wrote it) does not belong to you anymore. It’s a lot like giving up a child for adoption—you cannot expect to have any rights to the child’s life after you sign your parental rights away. When the real estate market crashed and my freelance writing assignments became fewer and fewer because of the market’s ability to hire writers willing to write for free, I reluctantly signed up with a temporary agency and accepted a write-for-hire contract. I wrote 1,500 real estate articles for a flat fee and avoided having to file for bankruptcy. However, now that the market is starting to turn around and I’ve been invited by a book publisher to write about real estate, I cannot use ANY of those 1,500 articles in my collection. I have to start over and write entirely new material. That’s the downside of writing-for-hire. You lose a major source of potential income through losing all of your rights to the work.

I understand the necessity of both writing for free and writing-for-hire. I also understand not all writers are equally educated when it comes to comprehending the complexities of the publishing industry. That’s how we ended up with an unnecessary class action lawsuit.

The only way I see this changing is for writers to take a stand and refuse to accept a contract with less than favorable terms. For as long as the publishing industry can get someone somewhere to write for free or limited pay, they will continue to do so. And then writers will be writing more for less. Or giving their writing away for free without any monetary compensation.