So there you are, surfing the internet, when you come across a news website that looks familiar, and you realise its an article you wrote, or a photograph you took, or perhaps both.
What do you do?
I received just this enquiry via email a couple of days ago. This was my response. The advice applies whether you are a full time freelancer, a student, or a blogger. Comments welcome.
(0) Keep Calm and Carry On
Resist the temptation to go off on a rant, which is easy to ignore. If the offender gets it that the complaint is serious and your approach is measured, that should speed up the resolution. Remember your objective: do you want money or do you want a row?
(1) Phone, ask to speak to editor, ask who she should sent the invoice to. Charge a substantial amount. I would recommend ignoring what you usually charge. Your fee on this invoice should be twice, perhaps three times your usual rate. Remember, you’re not invoicing an ordinary customer, but also for the fact that the material was used without your permission. If there’s a paper publication in addition to the website, don’t forget to charge both for online and for print use. Also, demand either a fully credited byline or a takedown, and an apology either way.
The editor may will complain that this is not their usual rate. You can point out calmly that a copyright case in court – which they would lose – would cost much more. [But see Point (6) for additional considerations on legal routes.]
It goes without saying that you should remain calm on the phone. Don’t get into an argument, simply state your points clearly.
Should you be told that a staff journalist or freelance lifted the piece and the publication took it on good faith, then point out that’s between them and the journalist, and not your problem. Either way, they have violated your copyright. What action they take against a rogue contributor is not your problem.
On the other hand, don’t get too dogmatic if they offer a settlement below what you’re asking for. If they offer to publish apology and a reasonable sum, consider taking it. Going a court route will eat your time and energy. Once they make a counter offer, they’ve conceded the important point, that your copyright was breached. Now you’re just negotiating how much you receive in compensation.
Keep a record of any conversations, and restate the main points in written correspondence afterwards to confirm both sides share an understanding of what was said. The legal opinion/consensus seems to be that recording as an aide memoire is acceptable, but recording for other purposes may require the consent of both parties. If in doubt, seek legal advice.
(2) Send the invoice as above, both by email and registered/certified post. In a cover letter, again repeat calmly the arguments above, and anything else of note in the telephone conversation. In particular, if they made any concession on the phone that the article/images are yours, put it on record in writing.
(3) Follow up by phone after a couple of days, ask when they are sending out your payment.
(4) If no payment is received, consider going public. Blog it, tweet it.
(5) If you are an NUJ member, get in touch. Either through your local branch, or through head office, the union may be able to exert additional pressure to reach a settlement.
(6) Depending on how serious the breach is, you may want to consider legal action. As you can imagine, this can consume a great deal of time and energy, as well as valuable resources in solicitor’s fees. Unfortunately, Irish law still doesn’t allow freelances to avail of the Small Claims Court. You’re a business, and Small Claims is for personal disputes. Don’t make threats you don’t intend to carry out. Before mentioning legal action, talk it through with a solicitor.
These notes are for general guidance only and not intended to replace legal advise. Your position will depend on the actual circumstances of your situation and you should take advice from your solicitor, union or association. Whilst every endeavour has been made to ensure the content of this information is accurate, the author accepts no liability for any loss or damage arising from any errors or omission herein.