Thanks, Spiked, for making my question ungoogleable.
July 30, 2017 1:52 PM   Subscribe

I was given comp tickets to write a review. The review was later spiked. Can I publish it myself? Difficulty level: No longer on speaking terms with editor.

This was me a few months ago (and thank you all for your answers, which helped me to come to my senses). I withdrew the article that sparked off the situation (the one the editor wanted to refer back to the subjects for "fact-checking") and have published it on my own website. I felt that I was within my rights to do this, both legally and morally, because

1) we had never signed a publishing agreement (the journal doesn't use them). So I retained copyright over my work, and the journal could not claim to have been granted an exclusive licence. (They could argue that there was a verbal agreement for them to have some kind of licence, but in England an exclusive licence or assignment of copyright must be granted in writing.)

2) the journal hadn't compensated or reimbursed me for the work, nor were there any plans for them to do so. So I didn't cause them any material loss.

Now, however, I have a trickier case. Before writing the controversial article, I'd also written a review of an event, which was intended for their issue that has just gone to press (they don't publish very often). After I put up a fight (see earlier question) they'd arranged comp tickets for me. Upon seeing the contents of the next issue, I'm not entirely surprised to learn that the review has been spiked. I'm not yet sure whether it would be worth publishing it myself (the event was some time ago now, but there were a few points that might still be of interest to readers). But if I decided to do so, would I have the right to? After all, I did receive some kind of compensation this time.

In a less fraught situation, I would just ask the editor, but we haven't been in touch since I withdrew my other article, and I'm not keen to reopen the lines of communication.

Thanks for your help!
posted by Perodicticus potto to Writing & Language (5 answers total)
Publish it yourself. Worst case, you take it down. I'm not convinced that being given a ticket to an event that you have been asked to review could really be considered "compensation".
posted by turbid dahlia at 3:49 PM on July 30 [2 favorites]


Publish it. You should keep a record of your clips anyway, and unpublished pieces that you're proud of certainly belong in that record.
posted by amandabee at 3:57 PM on July 30

Check your contract for terms about exclusivity on the review. Did it include first publication rights? Spell out what happened if they didn't publish, or how long they had exclusive rights?

No written contract? I don't know UK law, but my understanding of the copyright setup is that, barring a contract to the contrary, you own your writing, regardless of whatever encouragement someone else gave you to write it.

Even if the tickets count as "payment for writing," without a contract that says "exclusive for the length of copyright," I'd expect you're clear. You offered them the right to publish first, not exclusive use for length of copyright. If your verbal/email discussions indicated that the review was for this particular issue, and they declined to put it in, you certainly didn't agree that they could hold the review in limbo forever.

If they make noise about it, suggest drawing up a contract with an exclusivity period. Point out that this would be contingent on them publishing - part of what you get out of the deal isn't just "free concert tickets," but visibility for your writing. You didn't take free tickets on the condition that you wouldn't publish a review, after all.
posted by ErisLordFreedom at 7:15 PM on July 30

British journo/editor here who has spiked and been spiked.

If you don't have a written contract, you can do what you like with your copy no matter what the publication does or does not do with it. At one place I worked in the early 2000s, we had word-of-mouth commissioning and no explicit transfer of rights, which used to be the norm in our field. When corporate found out about this (we had just been bought by a very corporate corporate), we got told in no uncertain terms to get all our freelances to sign a proper contract that was explicit (and draconian) about All Your Rights Belong To Us. In fact, it was far too draconian and we had a pitched internal battle to tone it down before we sent it out to our freelances - and they still found it objectionable and rightly so.

(Side note: it's really fun to have to go to bat for your freelances behind the scenes and go through some very... frank discussions with lawyers who really don't care why you're making their life difficult but want you to stop now, and then to get blamed by the freelances for the result. People, you should have seen what they wanted to make you sign...)

But in the end they had to sign, or we couldn't use them.

I know there's still a lot of uncontracted commissioning going on, and that's fine - it operates on the usual code of conduct, which is that neither side screws the other. If one does - the freelance sells the same piece to a competitor publication, or the publication does something screwy with bylines or repackaging the content in some big-revenue deal - then the offended side swallows the insult and severs the relationship, or fixes things, or whatever works, but it never goes to lawyers.

In general, you can argue that a contract exists even if nothing's written down and that its terms are whatever 'the norm' is for that sort of work in that situation. Copyright is different, the law is clear that there must be a written transfer of rights, and in a specific form.

So, unless there are factors you haven't mentioned, legally you're in the clear, spiked or not. The question of reputational or business relationship damage (or benefit!) to you in publishing the piece yourself is entirely your call. But publishing spiked pieces elsewhere is a time-honoured tradition, even in cases where you're a staffer on a permanent contract and legally it's definitely forbidden without permission (just make sure it's a tradition honoured by your publication and don't use your own name) - Private Eye has long relied on this source of material from Fleet Street hacks.
posted by Devonian at 5:47 AM on July 31 [3 favorites]

Thanks so much, everyone! I have published the piece on my site now.
posted by Perodicticus potto at 4:51 PM on July 31 [1 favorite]

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