I have been published without my permission!

[Santino]

A thrilling development:

Hi Alex B

Your message has been forwarded to me. I was the in-house editor of the MYSTERIOUS UNNAMED BOOK, and I'm guessing you have a question about that. Perhaps it's a question about your payment. I'm really sorry that there has been a delay over this, and I'm hoping to get payments out in the next few days.

Best,

 

[Santino]

I have drafted this reply:

Thank you for your message. I'm afraid it is a little more complicated than a simple lack of payment. Although I was in contact with the editor of the book and submitted some work to him for his approval, I seemed to have dropped off his radar and was never sent any kind of contract.

I was therefore more than a little surprised to find work of which I still have copyright on sale, not only without my permission but without my knowledge.

 

[Wookey]

Oooh, I love email convos.

Keep us updated!!

(PS; Next few days, eh? He must think your head zips up the back....)

 

[Santino]

(PS; Next few days, eh? He must think your head zips up the back....)

Especially as he can't know where I live.

eta: Would welcome any tips regarding my reply, e.g. useful phrases, knob gags etc. As you may have suspected I have foregone legal advice in favour of trusting strangers on the internet.

 

[teuchter]

*

 

[Santino]

*

You make a fair point.

 

[coccinelle]

As Maurice said earlier, this is a contract rather than a copyright issue.

The "understanding" that you had is almost certainly a legally-enforceable contract. You don't both need to sign a formal "legal agreement" to make that contract. You just have to have a mutual understanding that one of you will do something for the other in return for something else (usually payment). The facts of the case seem to bear this out as you describe them.

1. Assume good faith. They have obviously made a mistake but there's no need to rub their nose in it.

2. Bill them.

3. Sue them for the bill amount if they don't pay by the due date.

It's simple breach of contract. Nothing more, nothing less.

I work in copyright and I agree with the foregoing. If you tried to sue, you would probably only get in damages the fee you were initially offered or something quite close to it. They could argue that the exchange of email led them to believe they had an implied licence to publish.

A copyright action would end up costing you thousands and you would be chasing damages of pennies by comparison.

They should still pay you for the use and you could reasonably argue that the original fee offered is not now acceptable because they have published without your permission. I think you should threaten to sue unless they pay a (reasonable) penal fee.

 

[untethered]

I have drafted this reply:

Thank you for your message. I'm afraid it is a little more complicated than a simple lack of payment. Although I was in contact with the editor of the book and submitted some work to him for his approval, I seemed to have dropped off his radar and was never sent any kind of contract.

I was therefore more than a little surprised to find work of which I still have copyright on sale, not only without my permission but without my knowledge.

It sounds like you're bothered that they didn't become your friend. They don't have any obligation to do so. They just have an obligation to pay you for work of yours that they've published.

Send them a bill and take it to court if it's not paid. Why are you making this so complex and personal?

I think it's reasonable to assume that you were happy for them to publish the work at the time you submitted it to them and you didn't notify them to the contrary. It's hardly as if they lifted the material from your website without notice or agreement.

 

[Santino]

It sounds like you're bothered that they didn't become your friend. They don't have any obligation to do so. They just have an obligation to pay you for work of yours that they've published.

Send them a bill and take it to court if it's not paid. Why are you making this so complex and personal?

I think it's reasonable to assume that you were happy for them to publish the work at the time you submitted it to them and you didn't notify them to the contrary. It's hardly as if they lifted the material from your website without notice or agreement.

Thank you for your comments.

 

[London_Calling]

eta: Would welcome any tips regarding my reply

You could ask him if he knows how to assemble an Argus bed?

 

[Santino]

Hi Alex B,

Yes, that's obviously more problematic - and puzzling.

I'm trying to work out what has happened. Obviously, you didn't get a contract, which is our responsibility, so I have to apologise. It sometimes happens that contributors of our reference books change what they write (taking on new entries or dropping old entries), and contracts are sometimes delayed (or revised) until the situation is clear; sometimes contracts get issued retrospectively.

But you say that you never heard from the editor about the work you submitted, and also imply that you had no agreement with him in place. That's very concerning.

According to the records which we received from the editor, you did have an agreement with him. Obviously, the situation changed after that. In the end, the text contains only one entry by you, and the editor indicated that you hadn't found the time to write the others (which often happens), so he ended up doing them himself. Is this inaccurate? Perhaps there is something I don't know. I certainly didn't know that you had not heard from him after submitting your piece.

As I say, it is always our intention to issue a contract to contributors, and we are to blame for not having done so. My apologies. I did, however, have word from the editor that you had agreed to write for the encyclopedia at certain rates, and had no idea that you were left uncertain - a very bad thing. I can understand your concern.

What's the next step? From my point of view, I would be glad if we could now come to an agreement for the article you did write.

Finally, this gives me the opportunity to supply what you didn't get before: a thank you for your contribution. It does exactly what I had hoped for, presenting curious readers with an informative and stimulating discussion of a deeper theme in SOMETHING EXCITING AND MYSTERIOUS. We've been lucky enough to get some good reviews of the book, and NAME REMOVED FOR REASONS OF INTRIGUE AND SUSPENSE's agent has been very complimentary about it, and your contribution is obviously an important part of that.

If you would like to chat about this, please give me a call on the number below, or let me have a number to ring.

Best,

I love the way he ladles on the flattery towards the end.

 

[Wilf]

I'm sympathetic - and they certainly shouldn't have published your stuff without being absolutely clear on contracts/payment. However...

Some time later (about 5 or 6 months) the editor got back in touch via email, asking where my other entries were. I still had no contract, and was very busy at work, so ignored it. He never phoned or wrote to me, and certainly never sent a sodding contract.

... will give them some amunition.

 

[Santino]

You could ask him if he knows how to assemble an Argus bed?

 

[Maurice Picarda]

Ooh, it's lit crit. Feminist Readings of Tom Sharpe? Miffy: Critical Responses? We must know!

 

[Santino]

I'm sympathetic - and they certainly shouldn't have published your stuff without being absolutely clear on contracts/payment. However...

... will give them some amunition.

Rather cunningly I neglected to put that in my email to the publisher.

 

[laptop]

A copyright action would end up costing you thousands and you would be chasing damages of pennies by comparison.

Incidentally, all suggestions for remedying this parlous state of affairs will be gratefully received.

So far we have:

• Training some Small Claims Court judges to realise that copyright isn't (as) hard (as the specialist copyright lawyers make out, or as lawyers who don't understand copyright claim it is)
• Knocking Copyright Tribunal procedure and costs down to Small Claims levels

Neither of these is quite working, in terms of interdepartmental politics within HM Government.

 

[Spion]

Some time ago (2006 actually) I applied to write some entries for a book (one of those compendium jobbies with lots of contributors). I was commissioned to write several entries for some money and duly submitted the first to the editor. He liked it and promised to send a contract, which never arrived. I did no further work, on the basis that I wasn't going to risk wasting my time when I had no legally binding document.

Have you not been doing this for very long? You probably lost yourself more dosh there. I've written tens of thousands of pounds worth of articles with no contract except a commission, and where there has been a formal document other than that it's usually the publisher forcing an agreement on me

 

[untethered]

Rather cunningly I neglected to put that in my email to the publisher.

How about not asking for advice here when you haven't been candid about the situation and haven't acted in good faith with the people you're trying to criticise?

 

[untethered]

Incidentally, all suggestions for remedying this parlous state of affairs will be gratefully received.

So far we have:

• Training some Small Claims Court judges to realise that copyright isn't (as) hard (as the specialist copyright lawyers make out, or as lawyers who don't understand copyright claim it is)
• Knocking Copyright Tribunal procedure and costs down to Small Claims levels

Neither of these is quite working, in terms of interdepartmental politics within HM Government.

I still don't see the copyright dispute.

The author submitted work to a publisher on the understanding that it would be published in return for payment. There is therefore a licence to use the copyright work and a contract in which payment is due for that licence.

The publisher has not paid but acknowledges that the author's copyright work has been published.

The author simply has to submit an invoice which by the evidence of this thread so far we have no reasonable concern won't be paid.

If you're a lawyer, I'm glad you're not my lawyer.

 

[mrsfran]

How about not asking for advice here when you haven't been candid about the situation and haven't acted in good faith with the people you're trying to criticise?

Did you get out of bed on the wrong side this morning? You seem very cross for someone who has nothing invested in this situation.

 

[coccinelle]

I would suggest you double the original fee and settle..

 

[untethered]

Did you get out of bed on the wrong side this morning? You seem very cross for someone who has nothing invested in this situation.

Yes, I have had a bad morning. However, I have invested my time advising on a matter in which the supplicant has not disclosed the full circumstances.

The reason the OP hasn't been paid as of now is that he hasn't sent in a bill. It's as simple as that. The situation neither requires the attention of the courts, nor from what I can see, any further input here.

 

[rutabowa]

if you want to keep getting gigs isn't it best to be on friendly terms with potential employers, rather than immediately accusing them of being crooks?

 

[untethered]

if you want to keep getting gigs isn't it best to be on friendly terms with potential employers, rather than immediately accusing them of being crooks?

Oh no. Always assume bad faith, dissemble, accuse and try to get lawyers and courts involved at the first possible opportunity.

That's the way to freelance success.

 

[laptop]

If you're a lawyer, I'm glad you're not my lawyer.

I am not. I do, however, occasionally teach lawyers about copyright, and I asked the question above in the context of having to write submissions to HMG and the EU Commission on how the law should be amended

If I were a lawyer, I'd be heartily glad you're not my client

I do have to deal all the time with people who want cases argued on the basis of what they insist the law ought to be





I only wish it were legal for me to suggest that you send me some words which I shall publish without your permission, in order that you can apply to Small Claims and report what happens. This musing does, however, give me the opportunity to use the word "champerty" on the boards

 

[untethered]

I am not. I do, however, occasionally teach lawyers about copyright, and I asked the question above in the context of having to write submissions to HMG and the EU Commission on how the law should be amended

Are you familiar with the phrase, "When the only tool you've got is a hammer, every problem is a nail."?

I only wish it were legal for me to suggest that you send me some words which I shall publish without your permission, in order that you can apply to Small Claims and report what happens. This musing does, however, give me the opportunity to use the word "champerty" on the boards

You seem to put a very strange construction on the facts. Are you saying that this author didn't voluntarily submit his work to this publisher on the understanding that it would be published?

Are you also saying that this author's best interests are served at this time by denying that a licence exists? Do you think he should sue for breach of copyright?

The matter is simply that the author's work was published as agreed but he has not received due consideration. And the reason for that is that he hasn't asked to be paid.

 

[Spion]

if you want to keep getting gigs isn't it best to be on friendly terms with potential employers, rather than immediately accusing them of being crooks?

Quite. I think tho OP's been a bit daft and precious and has cut their nose off to spite their own face here

 

[Santino]

How about not asking for advice here when you haven't been candid about the situation and haven't acted in good faith with the people you're trying to criticise?

Thanks!

 

[untethered]

Thanks!

You're good at this!

 

[laptop]

...

And how would a licence to use the work exist, absent either payment or written agreement that there be none?