Make Money Writing: Copyright, Plagiarism, Libel, Taxation, and Contracts for the Freelance Writer
Selling Articles Within the Law
As a professional freelance writer your aim is to sell articles and fiction to magazines, journals, blogs, and websites. To make a living, you must be productive and sell numerous articles. Much of what you write will be based on research. But you must be careful to avoid breaching copyright and trademark laws.
This article explains the key laws protecting the rights of a creator to be identified as the author of an original work in Great Britain and North America. Freelance writers should keep up-to-date with these laws not only to avoid breaking them but also to make sure they know how to protect their own rights in the work they produce and sell. To that end, the article also examines taxation and contracts for the professional freelance article writer.
Copyright and the Freelance Writer
What is copyright?
Copyright protects original work and the exclusive right to publish it. This law applies to writing, music, painting, sculpture, games, graphic design, photographs, computer programs, and websites. In fact, any work which has a distinct and original form.
The law automatically grants copyright to the creator of the work unless the creator sells or assigns the rights to a third party. In Europe, including Great Britain, copyright endures for 70 years after the end of the year in which the original creator dies. In North America the same law applies to works created during or after 1978, whereas works created between 1922 and 1978 enjoy copyright protection for 95 years, and works created before 1922 are out of copyright.
Titles, Names, and Pseudonyms
There are limitations to copyright law other than time. Titles, fictional character names, and real or pseudonymous author names are not subject to copyright. In principle that means you could publish a novel with the title “The Adventures of Huckleberry Finn” with characters called “Huck” and “Tom” under the author name “Mark Twain” and be within the law.
But before you think that might be a great idea, you should know the law against “Passing Off”. Passing off is a legal term for any deliberate attempt to fool others into thinking the work they have bought is a famous work, or about a famed character, or written by a famous author, when it isn’t.
Trademarks and the Freelance Writer
But copyright isn’t the only law protecting the unique rights of an individual or organization to own, publish, sell, or distribute original work. The law can protect titles, characters and authors as “trademarks”. That’s why you cannot write a book which includes a trademarked character. You may find yourself the subject of legal action if you do. A recent case in point was the action which Lucas Films took against a website which published “fan fiction” and produced an amateur movie using the characters and settings from the Star Wars franchise.
Quoting Someone Else's Work
Copyright and trademark laws also decide if, what, and how much you may quote from someone else’s work. If you wish to quote even one line from a song, for example, you must seek written permission from the copyright holder.
As a freelance writer, it’s your responsibility to make sure you have all necessary legal permissions for any copyrighted or trademarked elements in your work.
If you want to make a professional career as a freelance writer, you must take the responsibility seriously. Any publisher who finds you haven’t done your due diligence will never look at your work again and as publishers talk to each other, you may find your career over from that point.
Plagiarism, Copyright, and Legal Action
The law defines plagiarism as copying the work of another writer and publishing it as if it was your own without acknowledging the original author.
If you copy out-of-copyright material and add your name to it you aren't breaking the law, but you are still plagiarizing someone else's work. Aside from the moral argument for avoiding it, if you want to write articles that sell, and make a living as a professional writer, always avoid plagiarism. If you're discovered, your reputation as a writer will be irreparably damaged.
You may be sued if you copy another writer's work illegally. If found guilty, the damages for which you will be liable may be considerable. Never take that risk.
Quoting in a Review: An Exception to the Rule
There's an exception to the above rule about never quoting another writer's work without written permission. The law allows you to make brief quotations when you write a review. It's acceptable under "fair use" policy to quote a short piece, only a few lines from a longer work, so long as you credit both the work and the author.
But it's the only exception and "fair use" is open to case-by-case interpretation. It's better to err on the side of caution. If in doubt, ask. Several publishers will let you quote from their author's works for a fee. Only you can decide if the fee requested is worth paying based on how much someone will pay you for the finished piece.
The Public Domain
Work in the public domain is out of copyright because of the time that has passed since the author's death, or because the author has released rights to the work.
Shakespeare's works, for example, are all in the public domain as he died in 1616, so you may quote freely from them. The personal development blogger, Steve Pavlina, has released all rights to the articles published on his blog, so those are also in the public domain, even though at the time of writing Mr. Pavlina is still alive.
A word of warning. Even if an author died over 70 years ago, she may have transferred the rights to her family, agent, publisher, or other third party in her will. It's always worth checking to make sure.
Retaining and Protecting Your Own Copyright
You need not take any special action to register the copyright invested in your work. The moment you create your work, you own the copyright.
As a general principle, keep all copyright in your work. Once you sell your copyright, you can no longer control how or where your work is published, adapted, re-written, or even whose name is attached to it. It doesn’t belong to you anymore, and that’s the end of that.
For certain kinds of freelance work, there may be exceptions to that rule. For example, I sometimes sell full rights to articles and blog posts as a “ghost writer”. That means my by-line won’t appear with the work. But the ins and outs of ghost-writing are a different matter. Many publications will request full rights to your work when publishing online, but be happy for you to keep copyright in print. It’s still a “gray area” in legal terms.
When you start out you should focus on building both your portfolio and your reputation. So, keep your rights intact and get your name attached to work of which you can be proud.
Copyright and Freelance Article Syndication
Another reason to keep your copyright is that you may sell pieces multiple times. While you should never send a piece published by one publisher to another market without agreement, you can rework and resell an article in different forms several times. There’s also money in offering your work for syndication, in which case they may publish it multiple times in English-speaking markets around the world. If you syndicate your work through an agency, the same piece will sell to markets in the UK, North America, India, Australia, Canada, and Germany, and you’ll get a reduced fee for each reprint.
But in most situations, when you’re new to the business, only sell “serial rights” to publishers. Offer “First North American Serial Rights” (FNASR) in the USA and “First British Serial Rights” (FBSR) in the UK. This means you grant the rights to the publisher to publish the article once with your by-line (your name and possibly a short “author bio”) attached.
While these are the basics of copyright law and enough for you to know to sell freelance articles, it’s worth your while to study the law in more depth. You’ll find the full extent and limitations of copyright online at copyright.gov for the US and patent.gov.uk/copy for the UK.
Libel Law for Freelance Writers
Libel is any published work which defames or makes malicious comments about another person, alive or dead. The law may also consider fictional characters libelous if it’s possible to interpret the words or actions of the fictional character as being based upon, or referring to, a real person.
Sometimes real people are fictionalised. However, how that’s done, the permissions granted in advance, and the legal complexities of the supporting contract, make it the exception rather than the rule.
As a general principle, avoid using real people in your fiction and making any statements about real people in your articles which might be offensive or derogatory to such a person.
Libel law defines a defamatory statement as one which damages a person's reputation, causes that person to be "shunned or avoided", incites hatred or contempt towards the person defamed, or suggests a person is not fit to carry out his or her office, trade, or profession.
It's worth noting that there's a core difference in the way libel laws are applied in the UK and the US. In the UK, the burden of proof in a libel case does not lie with the person who claims to have been defamed, it lies with the author. It is enough for a British court to consider the work in question as defamatory for it to assume damages to that person. In the US, the burden of proof lies with the claimant. In other words, in the US the law weighs in favor of freedom of speech whereas in the UK it weighs in favor of protecting a person's reputation.
The lack of intent to harm is no defence in the law in either country. Should you make a libelous comment without meaning to, you could still be sued.
To be considered libelous work does not have to name or criticise a person directly. Innuendo, satire, and suggestive references are all potentially libelous.
The law considers organisations such as companies, clubs, associations, or societies as persons. So, it’s not only individuals protected against defamatory statements and libel, but organisations.
Libel law only applies to published work. Published means shown, distributed, or circulated to third parties. You need not have been paid for the work for a court to consider it libelous. It’s also worth noting that quoting or repeating libelous statements made by others is the same offence as that of originating them.
Legal Defences Against Libel
While it may seem you need to tread on eggshells the whole time if you want to write journalism, particularly in the UK, the law also enshrines certain legal defences against libel accusations. The three core defences in law are:
This is the strongest defence. You can call on it if you are certain the claims you have made are true and you can give reliable evidence to prove your case
- Fair Comment
This defence is the default fall-back for newspapers and magazines which carry investigative pieces. It relies on the right of an individual or publication to comment on facts brought to light in "the public interest". What qualifies as being in the public interest is often far from clear-cut and can lead to knotty and complex legal battles
The right of privileged access grants legal immunity against a libel action to members of the press when reporting on the proceedings of official bodies such as courts, parliament, local councils, and other bodies. However, the commitment to truthfulness and accuracy is still necessary and binding
A Last Word on Libel
While the information above is adequate for a broad understanding of libel law, the devil is always in the detail. Libel law in the US, the UK, and the EU, is complex and nuanced, and many professional lawyers struggle to understand it. If you have any doubt at all that what you write may be libelous, you should steer clear, play safe, and leave it out.
Contracts for Freelance Writers
For a single article or short story in a magazine, you won't normally get a written contract. You carry the transaction out "in good faith". There's little or no room to negotiate terms, either. The publisher should make the terms clear either in their standard guidelines document or by direct correspondence with you. You accept the terms or you don't.
But if you're writing a series, a column, or a longer work, a contract will be issued. For any work you do which is long (say, over 10,000 words) or requires a lot of time and research, expect a contract. If anyone offers to publish a book-length work and doesn't offer you a contract, don't even bother asking why, blacklist that publisher and move on.
Read Your Contracts
Many new writers, delighted to get their first sale, sign contracts without reading them. If there's a golden rule for the freelance writer, then it's never sign a contract without at least reading it first. Ideally, get advice on it from a professional body such as the Society of Authors or the equivalent in your country.
It's a sad truth that not all publishers, even well-known ones, are generous or even scrupulous in their dealings with writers. But it's the freelance writer's responsibility to check and double-check the terms of a contract before committing to it. And don't be afraid to negotiate. Unlike with the "writers’ guidelines" issued for one-off articles and stories, most publishers are ready to negotiate if they issue a contract.
What to Look for in a Publishing Contract
Contracts can be difficult to understand and the legal language obscure. Take your time to read and re-read your contracts with great care. You should pay special attention to the following important points:
- What licence does the contract stipulate you grant to the publisher? Only in the rarest circumstances should you surrender your copyright. Whatever limited rights you grant, in terms of time, territory, and media, the contract should state when the rights revert to you.
- How are they to pay you? Check the royalty agreement. There are infinite variations on the way publishers offer advances and any later royalty payments. As a new writer your advances are likely to be small; well under $1000 in most cases. Remember that "an advance" is an advance payment against sales. Only once you've earned enough to cover the advance will you receive royalties.
- If your work will be illustrated with drawings, diagrams, or photographs, the contract should state who procures and pays for them. If it's you, ask for money up-front to cover such costs.
- Consider the completion and delivery dates for the work contracted if you haven’t finished it. Are they realistic? Will you be able to deliver on time? A publishing contract should also stipulate when the work will be published.
- It should also include the publisher's commitment to placing a copyright notice in your favor and to make no changes to the work without your approval.
- How are subsidiary rights and income planned and calculated? For example, on what terms they will pay you for any translations, sale of movie rights, or international circulation.
- If you publish a book and it doesn't sell well (the case for most authors, I'm afraid) does the contract offer you the chance to buy back the remaindered stock of books to sell yourself?
I recommend you subscribe to an author's union, most of which offer contract checking as a benefit of membership. Another alternative, and increasingly important these days, is to seek representation by a literary agent who can handle all the contractual and legal arrangements on your behalf. If you negotiate your contracts yourself, then make sure you aren't afraid to "take the bull by the horns" and challenge anything with which you're not happy.
Tax and the Freelance Article Writer
The exact details of tax and other financial liabilities will vary depending on your country of residence. However, certain core principles of wise practice are universal.
By law you must declare your earnings from your freelance writing activities by filing your annual tax returns. So, it's vital you keep a clear record of all income and expenditure arising from your freelance business activities.
You should do this not only to be sure your declaration of earnings is correct and that you pay the right amount of tax, but also to make sure that you can prove any purchases and other expenses which you may claim against tax.
The list of items you can claim for in the UK and North America is long and includes everything from stationary, internet provision, postage, web hosting, office hardware and software, editing and proof-reading services, to rent, travel for research, telephone costs, meetings, professional subscriptions, and even the upkeep of your car.
As a new freelance writer, you may wish to handle all of this yourself. However, I'd recommend you engage the services of both a bookkeeper and an accountant as soon as you can. Like an agent, they should pay for themselves in the long-term.
Tax law changes often, so it's important to keep up to speed with any applicable laws in your country and take legal advice where necessary.
A Final Word
It's tempting as a creative person to avoid getting to grips with the nitty-gritty technical and legal details of your freelance writing business. However, it's best not to stick your head in the proverbial sand. You'll only store up future trouble for yourself and others. Do your due diligence and get a clear, actionable system in place to handle the business-side of your work right from the outset. It isn't as difficult or scary as it may seem at first and getting your house in order from day one will save a lot of heartache in the future.
This article is accurate and true to the best of the author’s knowledge. Content is for informational or entertainment purposes only and does not substitute for personal counsel or professional advice in business, financial, legal, or technical matters.
© 2019 Austin Hackney