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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."
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!"
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 . . . ."
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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