Avoiding and Resolving
The costs of avoiding a dispute are always less expensive than resolving one and, in the long run, writers are better off when they act to minimize their legal risks in appropriate ways. These risks can be reduced by avoiding actions that are likely to incur litigation, looking for warning signs of a pending dispute, and knowing how to engage professionals so disputes can be resolved in a cost-effective manner. Becoming familiar with the law will go a long way in making the business of writing more enjoyable and profitable. In addition, recognizing the onset of problems and developing the interpersonal skills needed to work out disputes is an important asset. This chapter provides writers with an overview of how they can minimize the occurrence of disputes and efficiently resolve those that do arise.
PRUDENCE AND COMMON SENSE
Many people are eager to break into the writing business. They sometimes foolishly find themselves having been taken advantage of by unscrupulous publishers, agents, and editorial services. There are several reasons why writers seeking to break into professional writing should avoid being victimized by shady operators. The most obvious is that being cheated costs money and deprives the writer of resources that could otherwise be put to better use. Second, falling for a scam may mark a writer as an amateur and diminishes the prospects for getting published by reputable publishers. A sad fact in the publishing industry is that the sheer volume of submissions forces most legitimate publishers to make preliminary judgments based on factors that reflect the writer’s professionalism, instead of merely considering the merits of each work. The result is that writers whose submissions suggest they are naive are less likely to be seriously considered. Some of the ways that writers have conveyed negative impressions about themselves include working with agents who have unsavory reputations and publishing credits with vanity and subsidy presses. This kind of history may create the impression that the writer is not sufficiently talented to warrant serious consideration by traditional publishers.
To maintain their marketability, it is important that writers familiarize themselves with how the publishing industry operates and learn to distinguish between appropriate business practices and unfavorable or unethical business practices. There is a lot of information about the publishing industry available from books, magazines, and the Internet. Learning about the industry will inculcate a degree of prudence that will likely prove invaluable to sustaining a writer’s career. There are many examples where common sense and prudence should tip writers off to the fact that something is amiss. Common ones include literary agents who charge fees to evaluate submissions, publishers who make sales pitches to prospective authors in which they claim to be traditional or legitimate, and writing contests that require the writers to purchase the anthology as a condition for being published. As a general rule, publishers and agents are besieged with submissions and do not go out of their way to attract writers. If someone seems a little too eager, and for some reason or another wants you to pay them money, you should be cautious.
References are another good way to get information. One way to find references is to ask the prospective publisher, agent, or other party to provide them. It is, however, fairly easy to find references independently. For example, many writers maintain websites that provide contact information. Quite a few use domain names based on the title of a book. Knowing this, you can contact the writers by email and ask about their experiences with particular agents or publishers. Another good way to get a reference about the financial viability of a publisher is to obtain a credit report from Dun & Bradstreet’s website, www.dnb.com, for a modest charge. A writer may also contact the attorney general’s office or the Better Business Bureau in the state where the business is located.
PREVENTIVE LAW
Preventive law is about understanding the rights that you have as a writer, so you can capitalize on them, and anticipating the problems you face, so you can avoid them. The fundamental premise underlying preventive law is that the legal costs associated with avoiding disputes are much lower than those associated with resolving them. Through the appropriate use of preventive law, writers can use their resources more efficiently.
To conduct your writing business in accordance with preventive law principles, it is important to consider your business activities from the perspective of the opportunities and risks you face. In addition, preventive law can help you set up frameworks that enable the efficient resolution of any disputes that might arise. For example, assume that you and another writer are considering writing an article about a well-known celebrity’s not-so-well-known marital indiscretions. Such an endeavor obviously raises potential claims of defamation and invasion of privacy. There are also less obvious issues, such as how you can protect yourself from frivolous lawsuits and how the responsibility for accuracy should be distributed between the writers. In such a case, a preventive law approach will formulate a comprehensive plan for protecting the writers. Some of the issues that might be considered in depth are
• what aspects of the research for the article should be addressed to ensure that the research is sufficiently complete, and to show that you have the requisite absence of malice;
• how you can document your research to ensure credibility and fend off claims that you were reckless;
• how you can protect your sources from claims;
• how you and your partner are going to allocate legal liability among yourselves, for example, should one of you be solely responsible for writing a defamatory article;
• what the writer’s rights are with regard to revisions made by the publisher;
• who will review the publisher’s edited revisions and approve changes; and
• whether you can be named as an additional insured under the publisher’s insurance.
These are the kinds of factors that can be very significant when it comes to deterring or defending against claims and they need to be considered long before a claim arises.
It is also important to understand that while the purpose of preventive law is to reduce legal risks, in most cases, it cannot eliminate them completely. Minimizing legal risks is a prudent approach to doing business, but many writers (and sometimes their attorneys) would be well-advised to ensure that risk elimination does not become an end in itself. For example, the safest approach to handling substantive content from a legal perspective would be to avoid writing anything that a reader could find offensive, controversial, or risqué. While such writing may reduce the risk of lawsuits, it may also reduce the chances of writing publishable or interesting material and unduly restrict the professional opportunities available to a writer.
Fortunately, an overly cautious approach to writing is neither necessary nor desirable. Thousands of pieces are published daily that express controversial opinions, say unflattering things about people, and shock the sensibilities. The reason these writers are not sued is because they write within the protections given by laws such as the First Amendment. Under a proper preventive law approach, the laws that protect writers should be given the same level of consideration as those that may impose liability.
RESOLVING DISPUTES IN GENERAL
The importance of avoiding disputes cannot be overemphasized, since resolving them can be time-consuming and expensive. Nonetheless, knowing how to handle disputes appropriately can not only enable timely and cost-effective resolutions, it can help preserve working relationships and enhance the writer’s reputation for professionalism. In many cases, disputes are caused either by a misunderstanding or because a party does not understand that the other party’s legitimate interest in a matter has not been met. When these kinds of disputes occur, respectful communication will often lead to fast and painless resolution.
Such communications should explain the facts as they are perceived, the writer’s interest in the matter, and some options for resolution. Likewise, a willingness to listen and address the other party’s concerns can go a long way in resolving many disputes. Heavy-handed threats or emotionally abusive accusations are usually counterproductive. For example, a writer who disagrees with an editor’s revision should approach the issue by asking why the revision was made and then explaining that the revision has inadvertently introduced an inaccuracy. A writer who assumes that the editor cannot comprehend simple concepts and then resorts to insults or profanity is unlikely to resolve the issue successfully and will almost assuredly damage the working relationship.
It is sometimes helpful to attempt to resolve disputes through written communication. The advantages of written communications are that they can be carefully constructed, they document the history of the dispute and the attempts to resolve it, and they are less likely to be ignored. Sometimes oral communication works better, such as when a give-and-take discussion is needed to air the facts and the parties’ concerns. The downside to oral communication (and sometimes email) is that the ability to make instant responses increases the risk that the discourse will break down into counterproductive accusations, insults, and threats.
Of course, some kinds of disputes arise because the other party is not meeting their end of the deal or is deliberately disregarding the writer’s rights. In such cases, persistence may be the writer’s best ally. By making regular requests that a particular need be addressed, writers can often prompt a recalcitrant party to comply with its obligations.
The sheer number of legal issues that affect writers sometimes can make it seem that there are an infinite number of ways for disputes to arise. Nonetheless, some matters occur more frequently than others. Common disputes and suggestions on how to resolve them are presented in the following sections.
Resolving Payment Disputes
You submitted the manuscript weeks ago and still have not received the check. This is an unfortunate situation that happens to many writers. In many cases, the amount at issue is too small to make litigation practical, so it is important to consider options carefully. This is also a situation that can be avoided by taking a preventive law approach. For example, many publishing agreements fail to state when payment is due, and such omission can be abused by those publishers who favor leisurely payments. A simple alternative is to have the contract specify when the payment is to be made. Magazine agreements tend to specify payment either when the manuscript is accepted or upon publication, and book contracts typically specify that royalties are to be paid within thirty days from the end of the specified accounting period.
In the event that payment is not forthcoming, a good approach is to make a tactful inquiry to the publishing house about when the payment should be expected. It is not uncommon to be told that the payment is in the mail or that your inquiry will be (or has been) forwarded to the accounting department. If the payment does not arrive during the next week, send a letter to the publishing house or attempt to speak with the appropriate person in accounting. If the payment continues to be delayed, be persistent until it comes. The key in such cases is to keep reminding the publisher that it is in arrears and that you will not go away until you are paid.
Resolving Acceptance Disputes
One of the most upsetting disputes for writers working pursuant to a contract is to have a manuscript rejected on the grounds that the quality is not satisfactory. Not only does the writer face the disappointment of rejection, but the notice is sometimes accompanied by harshly worded criticisms drafted by an unidentified reviewer. This is a particularly dicey area for writers and publishers. On the one hand, it is unreasonable to expect a publisher to go forward with a manuscript that is seriously flawed, since the article or book will likely flop in the marketplace. On the other hand, publishers should not abuse the right to reject unsatisfactory manuscripts as a pretext for dropping a work because they think the market has changed or because they want to put resources into other articles or books.
The better publishers will provide writers with an opportunity to revise the manuscript and provide at least some guidance regarding the changes that are needed. Ideally, the writer will have negotiated such a provision into the contract. However, some publishers merely notify the writer that the manuscript is unsatisfactory, state that the contract is terminated, and ask that the writer refund any advances. Regardless of how the publisher responds when it raises the issue of an unsatisfactory manuscript, it is critical for the writer to remain calm and attempt to work constructively with the publisher.
IN PLAIN ENGLISH
When in dispute with a publisher, having an agent can be beneficial.
The first step in resolving the dispute is to maintain a mature and professional discourse with the editor or publisher. Most editors are uncomfortable informing writers about unsatisfactory manuscripts and tend to be reluctant to provide the bad news in the first place. If the writer responds in an insulting, abusive, or otherwise unpleasant manner, many editors will stop communicating altogether, which makes resolving the problem almost impossible.
In general, the writer should try to find out why the editor believes the manuscript is unsatisfactory and what needs to be done to address the concerns. It is critical in such situations to listen carefully and draw out as much information as possible. Receiving the information in a positive spirit and expressing a willingness to revise the manuscript accordingly will go a long way in making the editor agree to consider a revised manuscript. It is equally critical to realize that it will be nearly impossible to convince the editor that he or she is wrong about the manuscript. In most cases, if the editor did not understand the manuscript, then it is a sign that it could have been written more clearly.
The Advance
The other issue is what to do with the advance that the publisher is asking to be refunded. Many writers will simply keep the money and wait to see if the publisher sues. If the writer believes, in good faith, that the manuscript is satisfactory and that the publisher has breached the contract, this is not an unreasonable legal position to take. It would, however, be unethical if the manuscript actually were unsatisfactory. The risks associated with keeping an advance under such circumstances will vary according to the terms of the contract. Obtaining legal advice is prudent in these circumstances.
Resolving Requests to Transfer Copyrights
Many publications, particularly magazines and newsletters, routinely ask writers to transfer the copyright before they will publish their works. Some publications are even audacious enough to ask writers to forfeit rights to their previous works as a condition to publishing future material. Most of the time, such requests are entirely inappropriate (even abusive), since publishers rarely have a legitimate need that cannot be served just as well by a limited license to publish the work.
The biggest problem with transferring copyrights is that the writer loses the right to resell or republish the work. In many cases, pieces can be revised and published several times, thus providing a significant source of income for the writer. By transferring a copyright, writers also will lose control over where the material may be published. For example, if a writer transfers all copyright rights to a publisher to enable it publish a sensual poem in a small literary journal, he or she will not have any recourse should the poem appear later on a pornographic website.
Writers who are presented with requests or contracts that involve transferring copyrights should try to negotiate alternative provisions with the publisher. An approach that works well for many writers is to offer the first North American serial rights (FNASR), which gives the publisher the first opportunity to publish a piece in North America. This is all that most publishers need and most will accede. Should the publisher refuse, the next step is to refuse permission to publish the piece or request an additional payment to cover the lost income from the prospective additional uses.
Resolving Requests for Unnecessary Permissions and Releases
Another frustrating kind of dispute arises when an editor or publisher does not want to go forward with a project because he or she misunderstands how the law applies to a particular situation. For example, an editor might condition the acceptance of your article about high-sugar cereals that describes Kellogg’s Honey Smacks as a potential contributor to tooth decay and obesity in children on your getting a release from Kellogg’s. Since corporations are generally reluctant to release others from prospective legal liability and the article takes a dim view of a Kellogg’s product, you doubt that the company would provide such a release. Since the publisher and you both agree that describing the product as an unidentified highly sweetened puffed-wheat cereal made by an unidentified company will deprive the article of its impact, your only viable option for making the sale is to convince the editor that there is no legal need to get a release from Kellogg’s.
When you are dealing with a situation in which the other party misunderstands the legal aspects of a work, you have several options for dealing with the matter. In many cases, referring the editor to a general reference about legal principles may be sufficient to allay his or her concerns. If that fails, you can tactfully suggest that the editor contact either a more senior editor or perhaps the publisher’s legal department. If those approaches fail and the potential compensation warrants the expense, another approach is to retain an attorney to prepare an opinion letter that can be provided to the editor.
In any case, it is important to remember that your goal is to provide the editor with sufficient assurances to make him or her comfortable about publishing the article. Avoid demeaning the editor or trivializing his or her concerns. For example, implying that the editor is ignorant about matters a reasonable professional should understand is not likely to bring him or her to your side. The key is to provide credible information that does not come across as self-serving or condescending.
Sometimes it is impossible to resolve disputes without resorting to litigation, arbitration, or mediation. Litigation is the traditional process of filing a lawsuit in court and having the case tried before a judge or jury. Disputes involving small sums can sometimes be heard in small claims court, which is relatively fast and inexpensive. Otherwise, litigation can be a long and resource-consuming process. The most significant advantages to litigation are its formal procedures, which provide the opportunity to discover the other party’s evidence through depositions and document production, and also provide the litigants with an opportunity to appeal adverse rulings.
Arbitration and mediation are different forms of alternative dispute resolution. Arbitration is similar to litigation, except that the parties try the case before a neutral party, called an arbitrator. The arbitrator is a private person hired by the parties to decide the matter. In this way, arbitration is sort of like hiring a private court. The procedures in arbitration tend to be more flexible than in litigation, which usually allows for disputes to resolved less expensively and faster. Arbitration decisions, however, can rarely be appealed or set aside.
Mediation differs from litigation and arbitration in that the mediator does not have the authority to decide the dispute. Instead, the mediator’s role is to assist the parties in working out a resolution to the dispute. It is most often used prior to, or in conjunction with, litigation or arbitration to see if the dispute can be resolved without a hearing.
Attorneys vary in their opinions regarding the respective merits of litigation, arbitration, and mediation. Some attorneys favor litigation, because it allows for broad discovery and provides the opportunity to appeal an unfavorable decision. Others favor arbitration because of its reputation for flexibility and lower cost. Many attorneys have found mediation to be very cost-effective, but others believe it is largely ineffectual. The true merits of the means of dispute resolution will often depend on the nature of the case and what the parties desire. In a complex matter in which a great deal of money is at stake, many parties will be more comfortable with litigation because of its comprehensive procedures and protections. On the other hand, many parties will favor arbitration for matters that involve moderate sums, or those that need to be resolved promptly or privately.
Writers should understand that publishing is a specialized industry and it involves legal issues that will likely be unfamiliar to most general business lawyers. Each state has its own laws covering certain business practices. A competent local business attorney may be your best source of information on many issues that will arise in running your business, such as selecting the form of organization and tax issues. To get legal advice that is specific to publishing, however, it is recommended that you consult with an attorney with expertise in publishing law.
If you do not know any attorneys, ask other writers and publishers for recommendations. Finding the attorney who is right for you is like finding the right doctor—you may have to shop around a bit. Most state and local bar associations have referral services. A good tip is to find out which attorneys belong to the intellectual property sections of the state or local bar association, or who has served on special bar committees dealing with intellectual property law. It may also be useful to find out whether an attorney has had any articles covering the specific area of law published in scholarly journals or continuing legal education publications and if the author is available to assist you. Your state or local law librarian can assist you here.
After you have obtained some names, it is appropriate for you to talk with several attorneys for a short period of time to evaluate them. Do not be afraid to ask about their background and experience, and whether they feel they can help you. Also ask about their communication practices and how soon they return telephone calls. Do not be bashful about discussing the attorney’s fee structure. You are entitled to an estimate for a specific service. However, unless you enter into an agreement to the contrary with the attorney, the estimate is just that. Business and publishing attorneys generally charge by the hour, although you may be quoted a flat rate for a specific service. Once you have completed the interview process, select the attorney with whom you are most comfortable.