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2000/00/00: "Get it in writing!," Folio: Special Sourcebook 2000 Issue, at 189:

"If there is any one piece of legal advice that holds true in (virtually) all situations it is this: 'Get [it in] writing!,['] says attorney Lawrence Savell.  "The point is that, in the event of a dispute, the best way to prove that the terms of an agreement were as you say they are is to have a contemporaneous written memorialization of those terms signed by the parties involved.

"The September 24, 1999 decision by the United States Court of Appeals for the Second Circuit in Tasini v. New York Times Co., involving electronic rights to print articles written by freelancers, makes it clear that this advice is no less applicable in the context of editorial dealings with such writers. Reversing a lower court ruling, the Court of Appeals decided that, under federal copyright law, publishers are not entitled to place the freelance content of their periodicals into electronic databases and onto CD-ROMs without first securing the permission of the freelance writers involved.  (The case did not involve the efforts of employees, which should be covered by standard 'work-for-hire' employment agreements.)

"Decision can't be ignored

"Although the decision represents the ruling of only one federal appellate court (albeit a very respected and followed one), on a narrow set of facts (it does not specifically involve the Internet), may be appealed, and might not necessarily be followed by other federal circuit courts, it cannot be ignored. The ruling may prompt publishers to pull from their databases any freelance material affected, and/or to offer retroactive payment for such electronic use--an expensive, tedious, and time-consuming process.

"Protect yourself

"Publishers contemplating on-line publication may--as their more prudent counterparts have already been doing for some time--protect themselves by requiring that freelancers enter into contracts clearly and comprehensively granting the publishers the rights they desire, designed to constitute consent to and allow electronic republication of works without additional compensation."

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2000/05/15: "Lawyers recommend that publishers protect themselves scrupulously when negotiating with freelancers," Wooden Horse Publishing, http://www.woodenhorsepub.com/search.asp

"Folio: Magazine, Dec 15, 1999 - Lawrence Savell, counsel with Chadbourne & Parke LLP, advises that beyond acquisition rights, publishers also address several additional items in contracts with freelance writers: 

"'Delivery of an unacceptable manuscript should not automatically require payment," Savell cautions.  He also points out that publishers should request written assurance that the writer is indeed the sole author. 

"Savell also recommends that contracts include permission from the freelancers for the use of their names, bio, photo etc. in promotions - to be used by the publisher or a third party.

"Writers, read your contracts!"

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2000/12/00: "Certified Classic Car Nut" (Letter to the Editor), Car Collector, December 2000, at 6-7

"I do enjoy reading the craft of your writing, along with that of . . . Lawrence Savell . . . ."

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2000/12/15: "Think Ahead to Avoid the Legal Loop," Publications Management, December 15, 2000, at 1-3

"[A]n expert on media defense law tells Publications Management that custom publishers often face legal questions over the ownership of content (particularly work provided by freelancers) and even product liability.

"Depending on the nature of their content, he says some custom publications -- even in the form of a lifestyle magazine -- may be viewed as advertising in some courts.

"Lawrence Savell, 43, specializes in product liability and media law defense for Chadbourne & Parke in New York, and he has written and lectured extensively on legal issues facing the magazine industry. He says custom magazine publishers and editors should establish strong working relationships with their own attorneys and they may want to do the same with the lawyers of their clients.

But Savell isn't an advocate of "knee-jerk" dashes to the lawyers -- just better sensitivity to legal issues.

"'It's definitely an art,' Savell says of dealing with counsel. 'The businesses that seem to be the most successful are the ones that see lawyers as a necessary evil and try to get the lawyers involved as early as possible when there is a question. They know an ounce of prevention is worth a pound of cure. It's balancing the business concerns with the legal concerns, and this lets the publisher do what it does best with the least amount of legal risk.'

"Steps to Deal with Legal Eagles

"Savell says the best first step is a telephone call. After that, run the potentially offending material past an attorney via e-mail or hard copy. The last step is reviewing a manuscript, particularly in cases where clients wish to review all content in their magazines.

"Expert Advice to Work with Freelancers

"During a presentation in October at the Folio: Show in Manhattan, Savell spent a large portion of his talk speaking about freelance contracts. He recommends making contracts as detailed as possible, based on the needs of the magazine, including possible indemnity provisions and specific grants of rights.

"Editors may want to even specify the details of the story, such as word length or topic, in the contract. 'Get it in writing,' he notes. And more than once.

"Once content hits the editing stage, Savell says the best thing a custom magazine can do to protect itself legally is view its magazine as might a plaintiff bent on suing.

"'Think, "Is there anything here that I can use as the basis for suing somebody?,"' Savell explains. 'And if you do that, maybe by making some minor modifications, you can provide some serious insulation down the road. If it's a larger corporation that has a legal department, by all means run it by them. There's no such thing as a stupid question.'

"Editors well versed in media law will generally have fewer and more meaningful dealings with attorneys, he says.

"'If you put something out there that says something negative about a [competing] company and it's false, you have a potential defamation.' he says.

"'It's not just things in the abstract, but it's juxtaposition, too. There have been privacy and libel actions by people who have given their permission to have their image used and then found it in an article on, say, prostitution...

"'And someone could view a custom magazine as an advertisement,' he continues, 'if the content is supporting a brand or a product. The most important issue is that custom publications are still subject to the same rules as everyone else. It's still a publication. It still contains information that goes to a third party. It could still be the basis for a claim.'

"So think, he says, before putting your custom publication's equivalent to the Good Housekeeping Seal of Approval, on anything."

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