What Should I Do With My Words?
March 15, 2016 7:19 PM   Subscribe

I took a freelance job. Things got complicated, the partners split, now what happens with my work?

In August of 2015, I was hired to write content for a new web startup. They are an online retailer of food items and were creating a site that would tie together the inventory with a bunch of other things: recipes, blog postings, instagram, subscription services, lifestyle items and such. I was hired to write pithy product descriptions at a flat rate but the scope of the project really grew after I signed on.

I was hired to write descriptions and humorous blurbs for 200-250 items. It turned out to be over 500 items, and then I was asked to write two 1500 word blog posts every week. I was paid for this extra work, that is not an issue. All together, I made about 7 000 for this gig which took a lot of intense work for a couple of months. At times, I struggled to understand the editing directions I was given, because they were pretty vague. I was told that starting in October, they would like to keep me on retainer to write the aforementioned blog posts and update new products as they were added. Then things got weird.

There were three partners, lets call them E, S, and M. E and S are married and run a bricks and mortar store, have the inventory and ship from that location. They also have the contracts with the suppliers. M is S's brother and lives in the USA, E, S, and I live in Canada. M took on the promotion and direction of the site and the majority of my communications were with him. I work from home. M began to contact me via email at odd hours, knowing that I often do writing work well into the morning, to ask for more things -- landing pages, advertisements, pop-up ad copy, elevator pitches, and other things I'd never done before -- statements of charity initiatives, internal email forms, a ton of stuff. I never knew what I was supposed to be working on or what priority to give anything; it was super-erratic.

Then he told me that they hadn't had the return on investment that they'd anticipated (the site had only been up for a month) and that they would no longer be able to keep me on retainer. I was disappointed but kept working on the projects I had on my plate. Then he started to get really snippy with me and once accused me of plagiarism (a thing I would never do!). Things got to the point where I told the other partners that I'd be completing the work they'd given me, but that in the future I did not want to deal with M, and that I'd be charging them a flat rate (by the word) for any future work that they wanted.

I did some more work for the company in November and early December and it took a long time to get paid for it. I had to remind them several times before they paid me. They finally paid me in early February (E and S issued all my pay cheques) and E told me that they had had a falling out with M and gone their separate ways. M had control of the tech side of things, froze them out of their email accounts and shared folders and site access. E and S are now suing M for control of the company. It's a bad scene but not my problem.

Except this week E contacted me asking if I kept copies of all my work (of course I do) and saying they were starting a new site. E wants me to send them all of my copy. I am sympathetic to E, but all of my copy is on the original site already (some of it weirdly and poorly edited, some of it with other people's names attached to it, which irritates me). I feel torn. I don't like M and feel he did poorly by me. I like E and S and they were the people who signed my cheques. But my work is already out there on one website, the website I wrote it for, and E and S want to put it on their new site. M never made a contract with me about ownership of my work. On previous jobs, my employers always stipulated that they owned my work. In fact, M never made ANY kind of contract with me at all.

E and S are not offering me anything for giving them these files. In total, they are about 130 000 words. On the one hand, I'd like to receive something for their reuse on another site. On the other, E and S were the people who paid me originally and it would be like charging them twice. I'm only working on a couple of small contracts right now and even a token amount would help me out a lot.

Long story, but thanks for reading it. Would you charge E and S? Would you allow them to use your work? Does this work belong to me still?
posted by anonymous to Work & Money (10 answers total)
I would suggest a perfunctory rewrite of the material at a lowered rate (say 50%).
posted by turbid dahlia at 7:35 PM on March 15, 2016

Maybe I missed this, but who really owns what you wrote? Is it you, someone else? Are you even legally allowed to send them the words? For free? For a fee? In a sue-happy environment, id cut my losses. But if I didn't want to run away, I'd make sure I wasn't commuting some sort of infringement.
posted by Geckwoistmeinauto at 7:49 PM on March 15, 2016 [4 favorites]

What is the likelihood that M will sue you over all this?

IANAL. I would suggest that under the Canadian Copyright Act, that what you're describing is a contract of service rather than a contract for service, which means the copyright belongs to the company (absent a contract that says anything different), and you do not own the copy or the rights to use it.

If the checks came in the name of the now contested company, I would tell E and S that they will have to get the rights as part of the legal battle with M, but that you will waive any rights you might have to the copy if they want to use a web scraper and just get it from the old site while they deal with the litigation.

If the checks came from E and S personally or from their brick and mortar, I would say that they personally or their B&M own the copyright of the work for hire and give them the files for no or minimal charge.

P.S. Contracts in the future! Especially for work crossing borders.
posted by Candleman at 8:15 PM on March 15, 2016 [1 favorite]

IANAL, but I am a freelance copywriter. In my experience, standard industry practice (at least in the US) assumes that the client owns the work produced on their behalf and under their direction/for their approval -- that is, of course, once they have paid for that work.

My opinion is that the internal dispute is irrelevant and, to you, is just TMI. Your client, who duly purchased the work you were engaged to produce, has asked for a backup copy. Why they want it or what they intend to do with it is their affair ... and their responsibility. Had they kept copies of each element as it was originally developed and delivered, they would not need to ask. They would already have all your files and could rightly use them as they see fit. They are now asking you to help them recover from their lack of foresight and organization.

In your place, I would re-deliver the work materials as they have requested, asking an appropriate fee to cover the time/effort it takes to gather up the files, organize them and deliver them. (After all, your original fees did not include this extra housekeeping burden.) Let them settle with M in the courts if he disputes their right to use the material. As you said, not your problem.
posted by peakcomm at 8:19 PM on March 15, 2016 [6 favorites]

I also am not a lawyer. But I am a professional writer. It REALLY sounds like this was, despite a lack of contract, work for hire and therefore you don't own any of it.

Providing the work to anybody else with the understanding that they could use it commercially would be a world of trouble. I honestly wouldn't even recommend paying a lawyer because I am pretty sure they would say hell no, do not give this work to E and S unless they are acting as agents of the organization that originally hired you for the work.

You can offer to rewrite this content for E and S (at a reduced rate, if you wish), but I would avoid even looking at the original content you produced so as not to self-plagiarize.
posted by 256 at 8:38 PM on March 15, 2016

To clarify: It sounds like you believe that E & S have split from M and formed a new company independent of the E, S & M company that originally contracted your work. My "hell, no" response above rests on that assumption.

If there is some doubt about who owns the original company and who is out (which may especially be the case if the orginal "company" was just an informal agreement with no paper trail), then you can reasonably reply to E & S: "I performed this work originally for $Company_Name and the content still belongs to $Company_Name. I can only provide you my backups if you are still acting on behalf of $Company_Name. If that is the case, there will be an additional fee of X dollars for compiling the backups."

If they say "yes, that is the case" then you should be in a pretty solid position to not be the one on the hook for any misconduct if things go further south.

Regardless, none of this content belongs to you.
posted by 256 at 8:48 PM on March 15, 2016 [5 favorites]

Agree with 256 -- my assumption was that if "E and S are now suing M for control of the company", they are asserting that they are still legitimate agents of your original client. If that is the case, you should be in the clear delivering a backup of the promotional/blog copy you developed.
posted by peakcomm at 9:17 PM on March 15, 2016

IANAL/IANYL but I have been a freelance writer on contract and totally understand the dilemma this represents. Unfortunately, it sounds like your content is tied up in their suit against M and, in reality, it does not belong to you but the original entity that hired you, which is an entity owned in equal parts by E, S, & M, regardless of whom signed the checks. If I were you, I would express to E & S that while you would love to continue working with them, it is your understanding that the content belongs equally to E, S, & M and ownership of it will be determined by their lawsuit. You can offer to write brand new content at your regular rate for their new company, but, at this time, you cannot provide them with copies of the original content. Honestly, there is nothing to stop them from going to the existing website and copying and pasting the original content, which is time consuming but not impossible or even difficult. If this is what they choose to do, this is completely not your responsibility, as long as you don't 1. mention this as a solution, 2. do this for them, or 3. ask for a fee for repurposing the content as is. If they did this, it will probably lower the SEO value of both sites, but since your name is not attached publicly and you aren't the person doing this, it also is not your problem. So sorry that you're in such a sticky situation. Good luck!
posted by katemcd at 9:27 PM on March 15, 2016 [1 favorite]

You can offer to write brand new content at your regular rate for their new company, but, at this time, you cannot provide them with copies of the original content. Honestly, there is nothing to stop them from going to the existing website and copying and pasting the original content, which is time consuming but not impossible or even difficult. If this is what they choose to do, this is completely not your responsibility, as long as you don't 1. mention this as a solution, 2. do this for them, or 3. ask for a fee for repurposing the content as is.

I agree with all of this except usual fee. Re incorporate (or incorporate) and raise your rates. You're charging too little. Make this industry your specialty and start positioning yourself as that industry's go to copy writer for it and find other clients.

I've had customers ask me for copies of old work years and years on. I turned over copies at the end of the agreed on work period if it hadn't already been handed over, and as far as I was concerned that was it i don't have it any more (and mostly I really didn't ... I nuked my copies as I could never portfolio them).
posted by tilde at 3:52 AM on March 16, 2016 [1 favorite]

Oh yeah, I agree with Tilde. I just now noticed the $7000/130,000 words thing. So you're charging about 5 cents a word. Triple that at a minimum if you want to be taken seriously.
posted by 256 at 5:59 AM on March 16, 2016 [1 favorite]

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