Can I make my former newspaper take my content offline?

May 10, 2007 6:06 PM

So I got fired today for nonsensical reasons. I worked at a small newsweekly, where I was a designer, but also for whom I did quite a lot of writing.

I never had an explicit contract, and the terms of my work as a writer were never made explicit. Stories that I wrote were posted to the newspaper's Web page, and now I want them off, as I know longer want to be associated with such a miserable company, and do not want them to continue to benefit in any way from my writing. As I understand it, republishing someone's work to the Web constitutes reprinting in a new medium, and it is an author's right to deny that content to the Web. Of course, it has already been published. I have emailed the editor and told him to take my contents down, but he claims there was an "implied contract" that allows the work to be up there.

So what is the deal? What are my rights to my own content here?

posted by Astro Zombie to work & money (29 comments total)

i'm a journalist, and it would seem like unless you refused from the beginning for them to publish your work (which of course would have been grounds of termination right there) then i think you gave consent and it's theres for good. Plus, as a newspaperman, i think you write for them and your work belongs to them, not you!
posted by Salvatorparadise at 6:13 PM on May 10, 2007

theirs
posted by Salvatorparadise at 6:13 PM on May 10, 2007

It was freelance work. I retain the copyright. So, no, that's not correct.
posted by Astro Zombie at 6:14 PM on May 10, 2007

then you should be fine!
posted by Salvatorparadise at 6:16 PM on May 10, 2007

Work for Hire (aka "Work Made For Hire under the 1976 Copyright Act"; WFH).
posted by ericb at 6:21 PM on May 10, 2007

Ownership Issues in Copyright Law.
posted by ericb at 6:23 PM on May 10, 2007

My understanding of situations like these is that unless you signed a contract explicitly outlining your rights and your client's rights to your work, it's hard for either party to make anything stick. You might try asking this question over on the mediabistro.com forums -- they seem to have a knowledgeable (if hifalutin cocktail-party-goin') base of users.

Since there was no contract and you were a freelancer, I'd think that you'd have as much of a right to refusal as they do to keep your stuff online. Not to slight your work in any way (if you write there as well as you do on MeFi, you're doing great stuff), but if you make enough of a stink, they might just pull your stuff to get you to shut up; writers are a dime a dozen, and it's easy enough for them to get new content if they have to deep-six yours. My advice is just to make the whole endeavor not worth it for them.

This is assuming, of course, that this bridge is totally burned already, and anything else you do to make a pest of yourself is gravy.
posted by hifiparasol at 6:25 PM on May 10, 2007

If there was no contract at all for the writing portion (and you were not an employee--even for the design work) then you can probably pursue legal avenues.

If you were an actual employee though, even 'just' for the design work, you're screwed.
posted by misanthropicsarah at 6:25 PM on May 10, 2007

IANAL -- but reviewing the WFH and Ownership Issues links above it appears that much depends on how your relationship to the newspaper is defined. I think you might have a case. Check out the interpretations of "Legal Confusion Over Who's an"Employee'" | "The Supreme Court Decides Who's an "Employee" | "The Importance of a Written Agreement" | "Why 'Authorship'is Better Than Ownership by Assignment" sections in the previous link.
posted by ericb at 6:31 PM on May 10, 2007

ericb FTW -- the interpretation of your status as freelancer vs. employee is a critical issue when it comes to work made for hire.
posted by katemonster at 6:43 PM on May 10, 2007

Did you previously freelance stories for the newspaper and then consent to their appearing on the newspaper's web page? If so, it doesn't seem you have much of a case in demanding that they be removed (but IANAL).

I would just take the high road and walk away from the situation. It doesn't sound like you have much to gain. Do you want a reputation as a freelancer who demands that his or her material be removed after it's been sold and published? (IANAJ, but my SO is).
posted by ldenneau at 6:44 PM on May 10, 2007

NYT v. Tasini
posted by Kirklander at 6:46 PM on May 10, 2007

Question:

In respect to a programmer, does a program made outside of working hours, as a personal project, not an assignment, to use at work, become property of the employer?
posted by mhuckaba at 7:02 PM on May 10, 2007

Surely having the work on the website is going to make it easier for you to sell future work?

If you're a freelancer, you won't need to explain to prospective clients that you were fired by the publication in question -- just point them to the articles as examples of your work.

Turn the situation into an advantage for yourself.
posted by robcorr at 7:05 PM on May 10, 2007 [1 favorite]

Do you want a reputation as a freelancer who demands that his or her material be removed after it's been sold and published?

Truthfully, I'm not concerned about that. I have a very good reputation locally as a writer, and the newspaper has a bad reputation. I would like to establish what my rights are regarding my material on the Web page, and, if I have the right to refuse it, I am happy to exercise that right. Too many authors knuckle under to misbehavior from publishers because they are afraid of not getting published; this guy really mistreated me, and I want to hold his toes to the fire if I can, so that he thinks twice about behaving like this to someone else.

When I wrote for the paper, my status as a freelancer when I wrote was absolutely clear. I was paid freelancer rates, and all my writing was done away from the office, but for minor revisions I did when the story was going to print.

I previously worked for another paper that had us sign a contract explicitly allowing my material to be posted online, and, had I not signed it, they would have taken my work off the Web, probably as a result of NYT v. Tasini. No such contract was ever made with this paper -- in fact, no contract at all was ever signed for anything.
posted by Astro Zombie at 7:06 PM on May 10, 2007

If you're a freelancer, you won't need to explain to prospective clients that you were fired by the publication in question -- just point them to the articles as examples of your work.

Not an issue. I have ten years worth of work on other web pages, most of it at much larger papers.

Listen, thanks for the advice regarding my career, but I'm really only interested in the legality regarding my rights to my work online. If I have the right to demand he remove my work, I will.
posted by Astro Zombie at 7:08 PM on May 10, 2007

mhuckaba: some companies' contracts will try to claim that anything you do in their line of work belongs to them (i.e., anything a programmer programs, anything a writer writes). Something that's completely unrelated to work will usually not be considered theirs, no matter what the contract says; something that you use in the course of work may very well be, even if you created it on your own time. It would be worth clarifying, getting them to sign a release acknowledging that the program belongs to you, before letting them use it and potentially take it from you.
(IANAL, TINLA, etc.)
posted by katemonster at 7:27 PM on May 10, 2007

What are my rights to my own content here?

How good is your lawyer?

If you're talking about the stuff you wrote for City Pages, that stuff has been up there since 2002, you've known it and you haven't done anything about it 'till now. It would be interesting to see what case could be made.

Of course if you demand they take down your stuff, their first response will be "fuck you".

So, who's your lawyer?
posted by Brandon Blatcher at 7:41 PM on May 10, 2007

Not City Pages. I signed a contract with them, and they've always been decent to me.
posted by Astro Zombie at 7:45 PM on May 10, 2007

Oh good, I had heard good things about them.

Could you let us know how this turns out? I'm really curious.
posted by Brandon Blatcher at 7:50 PM on May 10, 2007

Will do.
posted by Astro Zombie at 7:51 PM on May 10, 2007

I am a lawyer, but I am not your lawyer.

The paper is probably right that you impliedly authorized it to republish your work electronically. No big surprise there, happens all the time where people fail to get things in writing. You could tell them (in writing) you've revoked the license, they have X days to remove the work from their site, and any use beyond that date is copyright infringement. Better yet, hire a lawyer to tell them.

Their first response may be as Brandon Blatcher says. Their second response will likely be "estoppel." You might not win an infringement action, but it wouldn't surprise me if they took the works down anyway.
posted by schoolgirl report at 7:52 PM on May 10, 2007

It really all depends upon the contract and what the understanding was between you and the paper. The case cited above is about where the contract was signed pre-internet so there was no understanding as to internet publication. Modern contracts almost always explicity call this out, and if not it would be harder to argue that it was not expected and therefore implied. It is a difficult enough issue that you won't really get a clear answer without having an experienced copyright lawyer review the contract.

I can sympathize with your desire to punish them for their misdeeds, but you might also want to consider whether a fight with them will somehow affect your future career prospects. Some industries are remarkably small and this sort of spat could get around and label you a troublesome employee. I can not speak for yours. You might also spend a lot of money fighting them for little benefit to you other than revenge. Also, isn't having the articles up better for your career? There are many reasons why you might want to just let it drop, although I am mostly just speculating here. Only you can really answer these questions.

Whatever, good luck to you.
posted by caddis at 8:08 PM on May 10, 2007

(And if you do decide to take on that fight, keep in mind that the outcome of the case will be very relevant to pretty much every other media organization that uses freelancers, and they might very well pool resources to tilt things ieven further n their favour. It sounds like a very, very expensive undertaking to me.)
posted by mendel at 8:31 PM on May 10, 2007

Fair enough, Astro Zombie. I answered the way I did because I think it's generally easier to avoid lawyers if you can -- especially where there's a verbal contract involved.
posted by robcorr at 8:52 PM on May 10, 2007

I can sympathize with your desire to punish them for their misdeeds, but you might also want to consider whether a fight with them will somehow affect your future career prospects.

caddis is almost right. It does no harm to you to have your work left up and it may well be of benefit to you in the long run. As a general rule, the only reason to hire an attorney is if there is more to gain financially than the cost of paying someone for every tenth of an hour.

Walk away, don't look back, and get on with your life.

Success is the best revenge. Best of luck to you.
posted by three blind mice at 9:27 PM on May 10, 2007

i 'spose some could see it as follows: that the writing most benefits the public, the people who go to the site for info and benefit from your writings....and taking the stories down will only rob the readers of that source of info....I know this is all about you....but keep those loyal readers in mind!
posted by Salvatorparadise at 9:37 PM on May 10, 2007

AZ - I would be interested in any conclusion and follow up on this since I have some similar issues.
posted by tkchrist at 10:58 PM on May 10, 2007

Unless your contract states otherwise, I believe online rights are negotiated separately from print rights. This is why The Complete New Yorker consists of actual scans of the magazine rather than a collection of searchable, text-based transcriptions.

The Wall Street Journal summed it up nicely:

When Congress revamped copyright law in 1976, it said magazine publishers retained the right to print collections and revisions of past issues. But when a magazine wants to republish a free-lance work in a new and different format, the free-lancer must be compensated accordingly, two more-recent court rulings have found. That means when republishing articles on DVD or other digital formats, magazines must pay free-lancers again, get their permission to republish free -- or preserve the original print context. The New Yorker's solution was to scan the original magazine pages onto DVDs.

I realize this doesn't amount to advice, but the anecdote suggests that you probably do have a legal leg to stand on should you wish to pursue the matter.
posted by aladfar at 11:12 PM on May 10, 2007