ASJA's mission is to educate writers on how to advocate for ethical treatment and their contractual rights regarding payment, acceptance kill fees, etc. The majority of questions ASJA's Contracts & Conflicts Committee receive stem from delayed payment or copyright infringement. Below you'll find some helpful information on dealing with these and other issues.
Copyright Infringement Self-Help
Late Payment Self-Help
Kill Fee Disputes
Copyright Infringement: What to Do?
Have you found your work on other's websites?
It happens all too often. Many people believe anything they see on the Internet is theirs to use. The rotten few know it isn't and don't care. Either way, you have options, the first being a friendly note saying "Hey, this is mine. Please either pay for using it or take it down."
If that doesn't work, or if you don't want to bother waiting to find out, send a Digital Millenium Copyright Act ("DMCA") Notice. The website owner who put up your work is legally required to remove it upon receipt, if you use the suggested letter below and leave nothing out.
If the website originates in another country, you still have a shot at getting your work removed if you use the notice, even though it references a U.S. law. The idea for having formal takedown notices originated at a 1998 World Intellectual Property Organization (WIPO) conference in Geneva, during a discussion about Internet piracy. Since then, most signers of the Berne Convention -- the international agreement on copyright law -- have passed laws like our DMCA in their own countries. Your pirate may have gotten similar notices and realize the validity of yours. It's worth trying.
Other things to know, other than using the entire letter, leaving nothing out:
- You don't have to have formally registered the item with the U.S. Copyright office before using the DMCA notice. Once something you write is set in final form, it's copyrighted. Period. (While registering is a good idea, it's only required if you plan to file suit for copyright infringement, a last-ditch option.)
- Sending the notice by email is fine. So is sending a registered letter, if you have a snail address for the website owner.
- If there's no email address for the site owner -- a common problem -- you can find it by doing a "whois" search at www.whois.net. Many YouTube videos walk you through this. Also, there are sites that make it super easy to search. One that offers a free trial: www.domaintools.com/research/dns For example, if you go to that site and put in "asja.org" you'll get our address on Broadway, our phone number, our webmaster's contact information, and various pieces of technical information about the domain's registration.
- While it's a good idea to copy the hosting company, to put pressure on the website owner, AKA "the pirate," the host and/or owner of server has no legal obligation to remove your material. That responsibility lies with the owner of the infringing website.
If your "whois" search identifies a server in China, contact Advocacy Chair Salley Shannon for recourse ideas: email@example.com. (ASJA members only, please.)
Template for a DMCA take down notice
These steps and sample scenarios compiled by the Contracts & Conflicts Committee will arm you with the knowledge to make sure you're treated fairly.
Late Payment Scenario
You filed your assignment on time, and turned revisions around in a week. Your editor says, "Great work. I'll put your check through right away." But weeks go by and no check arrives. What do you do?
- Check your contract. Once the calendar indicates your payment is past due, (i.e. your contract says payment is 30 days after acceptance) call your editor to inquire if payment has been processed. Don't wait for two months to pass before taking action—that sends the message that you don't run a tight ship. Ask for verification of the payment date. You should also consider contacting accounts payable for payment information including if the invoice has been processed and the payment's issue date.
- Follow-up. If the payment does not arrive, call your editor and/or accounts payable (followed up with an e-mail to confirm the phone call) within 7 to 10 business days from your last contact or the scheduled payment date for confirmation of the payment's processing date and/or a check number when applicable.
- Don't delay. If payment doesn't arrive within 7 business days from the most recent date, or if the market has yet to advise of a concrete payment date, send your editor a certified letter, return receipt requested - not an email - on your letterhead. Briefly recap the chronology of the piece (date you turned it in, date it was accepted, date of your phone call and what was said, date of your email, etc.). State that if you haven't received your payment by a date of your choosing (10 days from the date of the letter?) you will be forced to take further action. This tells your editor you are serious and also establishes a paper trail in the event that you have to go to small claims court or bring any other kind of legal action.
- Still no check? Be sure the publication is still viable. If it's in Chapter 11 or has declared or is about to declare bankruptcy, you may be out of luck. But you can still file a small claims court claim, which will put you on the list of creditors. Unfortunately, writers are not considered "assured creditors," so if you are paid, it's likely to be a small percentage of what you're owed. Some publications take their debts to writers very seriously but you do need a paper trail, and a small claims court filing will do the job nicely.
- Join ASJA! The ASJA Contracts & Conflicts Committee assists members when publications fail to pay within a reasonable time.
What To Do When Your Market Doesn't Pay On Time
- Submit invoices with your completed assignment. If payment isn't received within the terms of your contract or 30 days, follow up promptly. Don't be afraid to demand payment and don't wait too long to do it. Editors know professionals expect to be paid promptly. Letting months go by before you complain is a sure sign of an amateur and signals you might be someone who can be put off.
- Don't accept another assignment until you've been paid if you're having trouble collecting your fee. There are few things so galvanizing to a market as facing the potential of blank pages with an impending deadline. If you already are working on another assignment, consider holding it until you receive your pay.
- Don't rely on phone calls and email to collect late fees. A certified letter says you mean business.
- Do not start work until you've seen the contract or gotten the publication to agree to a written agreement.
- Do your homework. Check with other writers to assess the reputation of a new client/market before taking on an assignment. If a market has a reputation for treating writers shabbily, there's a greater chance you'll be treated the same way - no matter how good a writer you are. If you join ASJA, you will have access to Paycheck, in which writers share their experiences with a wide range of publications.
- Be alert to the warning signs that a company is in financial trouble. If a market that normally paid on acceptance suddenly switches to paying on publication, or later, they may be waiting to pay invoices until they can collect from their advertisers. And if they do go under, you may never get paid. So be alert, and don't take on more work from a company that's having trouble meeting its payroll.
- Put it in writing. Send your editor a "just to confirm" email summarizing all conversations about the direction your assignment should take, or a change in the assigned word count. A good paper trail can save you a world of trouble later if you have a kill-fee dispute.
If your market doesn't issue contracts, you should confirm the details of the assignment in writing.
Sample Letter Of Agreement:
January 20, 2010 (Date is very important)
Dear Editor TK:
It was nice talking with you on the phone/in person on [STATE DATE] regarding an assignment for [STATE MARKET NAME)] on the dangers of over-the-counter drugs. As we discussed, the 1,200-word story is due on March 1, 2010. As we also discussed, the story will include real life stories from three women who have experienced difficulties with over-the-counter drugs. Each of those stories will be 300 words. In addition, I will include a 300-word sidebar that lists dangers of other over-the-counter drugs that aren't mentioned in the main body of the story. The fee for this assignment is $2,500, which will be paid on acceptance. You will also pay reasonable expenses and [STATE MARKET] will hold First North American Serial Rights (FNASR) for this assignment.
In the unlikely event that the manuscript does not satisfy the above requirements or is not written in a professional manner, you will give me the opportunity to revise the manuscript. If it still fails to meet requirements, you will pay me a 25% kill fee ($625). If I don't hear from you otherwise, I will assume that these terms are agreeable. Thanks for your interest and cooperation. I'm looking forward to working with you.
Kill Fee Disputes
It's important you negotiate the kill fee clause in contracts with as much care as you negotiate the fee for your completed assignment. Work to obtain the highest kill fee possible, make sure the contract allows you the opportunity to make revisions to your article (to avoid having the piece killed simply because the editor now wants the piece to have a different focus), and make sure the contract is clear about when the kill fee can be invoked.
If you plan on fighting a kill fee, it's of the utmost importance to NOT sign or cash the payment representing the kill fee before concluding all negotiations. Doing so indicates you agree to the kill and thus ends the market's contractual financial obligation to you.
Kill fees can result from the following circumstances:
- The editor and the writer misunderstood each other about the assignment;
- The editor failed to make his or her expectations about the assignment clear;
- The writer fulfilled the assignment but the editor, or the editor-in-chief, changed his or her mind about what was wanted, or about accepting the assignment;
- The assignment was clear, but the writer failed to fulfill it.
Of the causes above, only #4 is a legitimate reason to kill an assignment. And although this is the reason editors invariably give for refusing to give up the kill fee clause in contracts, the fact is that most pieces are killed for all the other reasons.
Your best shot at getting paid in full, or at least a bigger kill fee is if #3 applies. But you must establish that you fulfilled the assignment in good faith and that the only reason the piece was killed was that the editor (or his superior) changed his mind about what he wanted, or decided he didn't want the assignment you completed. To substantiate your position you need a good paper trail.
- Make your case in a letter, in calm, reasoned language, and review the chronology. Provide printouts of the relevant email messages you've sent and received. Use restraint; don't send a 2-inch pile of documentation.
- If this letter doesn't produce the desired result and you feel strong enough about the issue to push it further, consider sending a second letter and cc your editor's immediate superior.
If your piece was killed for reasons #1 or #2, write a letter outlining the problem and cite the chronology from your paper trail. (Example: On September 4, Mary Louise emailed me that the piece was "too heavy on the quotes from victims" and needed "more medical quotes" and asked me to interview two more doctors. On September 25th, she called me to tell me the piece was killed because "there are too many quotes from doctors. We need to hear from the women themselves.) Make the case that you fulfilled the assignment in good faith and should not be penalized because the assignment was changed in midstream.
Increasingly, writers are having trouble collecting payment because editors fail to acknowledge receipt of, or officially accept assigned stories. The Contracts & Conflicts Committee sees more and more instances of writers filing assignments on time and getting no acknowledgement or response despite repeated attempts over weeks and even months. On the rare occasion when these aggrieved writers receive word on whether an editor has reviewed a story, it is often along the lines of "not yet" and "no, sorry" because editors are "too busy." The resulting non-payment limbo often continues months past the initial filings and requested edits. This dragging of feet and excuses of "overwork" results in writers experiencing unwarranted pay delays.
Here are some strategies to avoid those unwanted delays:
- Elicit a timely response. When you submit an article or manuscript, state that if you do not receive word of acceptance within 2 weeks, you'll follow-up. That lets your editor know you're not going to let this piece fall through the cracks.
- Stick to your schedule. If you haven't received word of edits or acceptance within 2 weeks, drop your editor a note inquiring of the piece's status. Don't delay! That sends the message you don't value your work and don't care if/when it's accepted.
- Follow-up. If after another 2 weeks (4 weeks total) your editor have not accepted or communicated with you about the piece, call – not email – your editor. In some instances emails really do get lost (i.e. there's a word in your manuscript that's blocked by a markets spam filter).
- Escalate the issue. If after another 2 weeks (6 weeks total) lapse and there's no word of acceptance, call your editor again and consider contacting your editor's boss. Explain that you fulfilled your obligation and you deserve similar consideration.
- Get tough. 8 weeks is long enough! Send your editor a certified letter, return receipt requested, detailing the chronology of the situation. State a deadline (2 weeks from receipt of letter) by which you would like to receive word of the manuscript's status. Cc his/her boss.
- Issue a final demand. If your manuscript is not accepted 10 weeks after submitting, send a second certified letter return receipt requested to your editor, his/her boss and the market's EIC (if applicable) asking for full fee to be put through as you've not received notice of edits needed. Give a second date (2 weeks?) for acceptance and/or payment to be executed.
- Join ASJA! Unfortunately, more and more writers report having their articles languish in limbo indefinitely. When this happens to members, ASJA's Contracts & Conflicts Committee can help.