Tools and Resources (for all)

Freelancers Copyright Guide

The Grievance Process

 


 
Part I: The Origins of Copyright
 
By J.S. Ackerman

"The Copyright Office's mission is to promote creativity in society by creating and maintaining the public record through registration of claims and recordation of documents."
--excerpt from Copyright Office Mission Statement

Did you know that copyright is part of the U.S. Constitution? Article I, Section 8 of the U.S. Constitution of 1789 gave Congress the power "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." The framers must have thought the idea important: It's right there between setting up the postal service and establishing lower Federal courts. Did you know that it was freelancers who lobbied to make it law? Translating this power into law was the task of the First Congress. A bunch of freelancers banded together to prod them to act.

Eighteen writers and inventors petitioned "for exclusive privileges as authors." Although Thomas Jefferson wrote Rep. James Madison of Virginia that he would prefer a longer copyright term than the renewable fourteen years taken from British precedent, the House passed the bill on April 30, with the Senate concurring on May 14. President Washington signed "An Act for the encouragement of learning" for authors of maps, charts, and books on May 31, 1790. The principle of copyright still holds true today: The creator owns the work.

The principle of copyright that Jefferson, Madison, and Washington agreed on is vital today: The author owns the work. The law declared "that any person or persons who shall print or publish any manuscript, without the consent or approbation of the author or proprietor thereof, first had and obtained as aforesaid [i.e., by advance written agreement] shall be liable to suffer and pay to the said author or proprietor all damages occasioned by such injury" (First Congress, Sess. II, Chap. XV, Sec. 6). This central idea of copyright survives in the current 1978 law, despite ongoing efforts by publishers' attorneys to distort it beyond recognition. It's worth recalling that it was a coalition of freelancers who banded together to secure intellectual property rights for themselves and for all who came after them.
 
 
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The Grievance Process

By the Grievance and Contracts Division, NWU

Copyright © 2001 National Writers Union-UAW 1981 MW. 1.1 3/01


One of the most important member functions of the National Writers Union is to assist in pursuing grievances and in giving contract advice. The Grievance and Contract Division (GCD) does this. When we tell writers what our division does, the typical response is: "I don't have any grievances. I've been writing for Magazine X for five years and I get along well with the editor and they always pay me."

But several sentences on we often hear the serious statements. "They are a bit late paying me this month. They usually pay after 60 days, but they're a month late now. And they have been putting my articles on the Web, which I really don't mind, but I recently saw one of my articles for sale by a major online information reseller." This writer has several grievances—and very serious ones at that. The NWU advises writers that they should be paid within 30 days of submission for anything other than book contracts, so, unless this writer's contract states otherwise, this publisher is always late with payment—this month, particularly so. And unless the writer's contract specifically states that she has given all rights or specific rights for electronic republication and resale to a database, the publisher has appropriated these rights without payment. Most of the time, we, as writers, tend to weigh our good relationships with our editors at a particular publication versus our rights and benefits as writers. But it shouldn't be thus.

As writers, we must understand that publishers do not have products without us. We are important to the publication process—and not only should publishers treat us as if we're valuable to them, but we should act as if we're valuable to them, too. Let's get back to our writer who has multiple grievances. They are for nonpayment, web infringement, and infringement by selling rights to a third party. What steps should the writer take? In fact, what steps should you take if you find yourself with what might be a grievance on your hands?

First, make sure your NWU membership is up-to-date. We cannot assist nonmembers or lapsed members. Almost every NWU local has at least one grievance officer (GO). Look at the local's newsletter to find the GO's name and contact information. If you can't find this, contact the NWU national offices and they will put you in touch with a GO. Be prepared to give the GO copies of all documentation pertaining to the grievance: contracts and correspondence. You must have an idea of what you want. Do you want payment? Do you want your article removed from the Web? Do you want a current royalty statement? Many times, writers will not know what they want or they may change their minds about what they want. It is very difficult for a GO to work with you when you don't have a clear idea of what you expect the process to yield.

You will have to fill out a form authorizing the GO to assist you and acknowledging that we are not giving you legal advice. The GO will help you write a demand letter, which will lay out your demand to the publisher and give the publisher a date by which the situation must be resolved. If this letter approach is not successful, the GO will take over, writing letters or making phone calls to the publisher. In some cases, they'll even meet with publishers to hammer out deals for groups of grievants. If the publisher is still recalcitrant, the GO may suggest that you take legal action.

It is important that you follow the GO's advice. It is based on the collective experiences of many GOs over the years. And your GO is only several keystrokes away from advice from other GOs. Some grievances are unavoidable: disputes occur, clients don't pay.

But some grievances can be avoided by making sure your contracts contain clear language. It helps if you have a clear understanding of your task. Don't let an editor get away with saying, "You know what I want." Make sure that what the editor wants is spelled out and agreed to. Also, before you take on an assignment, check the publisher's reputation. This may be done through an NWU contracts advisor (CA). The CA can help you so that you negotiate a better contract and can check our internal database to see if there have been problems with the publisher in the past.

Although you may be terrified when you begin the grievance procedure, remember that most grievances are winnable.

Copyright © 2001 National Writers Union-UAW 1981 MW. 1.1 3/01

Read more specific examples of grievances (PDF).

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  Name
Building Strength Through Diversity Handbook How diversity helps the NWU.
Copyright Guide for Freelancers Got a question about copyright, the answers are in here.
Digital Bill of Rights Your rights as a writer in the digital age.
E-Book Contract Amendments A guide to wading through e-book contract amendments.
Finding an Agent The process of finding an agent explained.
Membership Form The form you need to join the NWU.
Negotiating Contracts Over the Phone Don't negotiate your contract without reading this!
Overview of Grievance Process How the NWU grievance process works.
Print on Demand Report A look at the Print On Demand industry.
Successful Grievance Cases How the NWU has helped writers get what they were owed.
W-9 Tax Form

 

 

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