My hat is off, and my heart goes out to Marianne Mancusi. A victory is a victory, even if the judgment is good for nothing other than printing her next rough draft on the blank side.
Deadbeats like L2S are alive in well in every city, every county, and every state. As an attorney and writer myself, I’d like to share a few money saving tips for fellow writers who find themselves boxing the shadow of an unscrupulous, and often remote, publisher.
AVOIDING THE (UN)AVOIDABLE
Before any of us power up the computer, or refill the ink in our not-quite-laser-quality-but-you-could-have-fooled-me printers, remember these two little words: written contract. Written contracts in this business are a lot like rejection letters; if you’ve seen one, you’ve seen ’em all. This means once you have one that works, you can use it as a template over and over again.
What should you include in your contract? In addition to the standard information, such as who does what, for how much, and when, it should also include a JURISDICTION clause. In Marianne’s case for example, a jurisdiction clause (in the writer’s favor) could have saved her the price of a plane ticket. This clause is a short paragraph which sets forth the legal venue in the event the relationship between writer and publisher goes bad.
Of course, it is ideal for the writer to negotiate her city of residence as the place where the legal battles will be fought. Without this clause, it is likely the appropriate jurisdiction will be either (1) the defendant’s place of business; or (2) the place where the contract was “executed”. In this global, dot.com economy, contracts are often negotiated over email and fax. If a writer signs a contract in California and then sends it off to a publisher in New York, where has the contract been executed?A savvy writer should not leave this up to chance.
Publishers pay for the right to reproduce, disseminate, or in some cases, to purchase all of the rights to a particular piece of your work. Your work is your property, your intellectual property. And just like any other good for sale, the deal ain’t over til the fat paycheck clears.
Therefore, it is very important to set forth the specific terms of payment in your contract. Remember to include (1) what you are selling (e.g., a 500 word essay); (2) how you are selling it (e.g., first time rights, all rights, etc.); and (3) when you will be paid for your product (e.g., upon completion, or the third Thursday of every month until completed, etc.). The key here is to ensure that no rights pass to the publisher unless and until you, the writer, has been compensated fully.
When dealing with a questionable publisher, do not let the excitement of seeing your name in lights blind your common sense. If a publisher actually publishes your work without having paid for it, you may have more than a simple small claims action on your hands. You may have a copyright infringement case with the potential for large, and oftentimes punitive, damages.
PAY UP, OR SHUT UP
If a deadbeat publisher owes you money, and claims he can’t pay, the first thing you should do is roll your eyes and exclaim in your best legalese, “Yeah, right.”
But remember, you too can play tough. If the publisher doesn’t want to pay, you can contact a local government agency which may make him pay, and that won’t cost you, the writer, a cent.
If a publisher, any publisher, develops a reputation for screwing writers out of their hard earned money, then that smells a lot like fraud to me. You may even decide to prosecute, especially if the jerk has screwed writers before. It is possible the deadbeat could be put out of business. It is also likely the State would order restitution be paid for your monetary loss. A well written letter (and hey, come on, don’t we write for a living?) or phone call is all it takes to get the ball rolling.Here again, a written contract is good evidence, and could be a necessary feather in the cap of the local prosecutorial agency.
I NEED A MOUTHPIECE – OR DO I?
Obviously, I can’t cover all there is to know about “Publishing Contracts 101” at one sitting, but I can point you to an often untapped resource should you have questions on the topic.
Many states have “Volunteer Lawyers for the Arts” chapters. VLA is a non- profit organization made up of local volunteer attorneys who will provide thirty minutes of legal advice free of charge for qualified clients (some chapters do charge a nominal fee or donation for this service). If additional work is requested beyond the initial consultation, the client can hire the attorney at a reduced rate. I happen to be a member in San Diego and Los Angeles. A complete list of VLA offices by state can be found at:
Unscrupulous publishers feed on unsuspecting writers. Don’t be afraid to strut your stuff. If you have a well crafted contract, use it. If you have a lawyer whose name you can drop, do it. If your prospective publisher is frightened off by your legal savvy, so be it.
An honest publisher should have no problem negotiating a fair contract and signing on the dotted line.If we work together on this, deadbeat publishers may one day become as obsolete as carbon paper copies!
Jonna M. Spilbor , Esq. is a trial attorney with writing credits which include experience as a former reporter and columnist with the Southern Dutchess News in her native New York, and co-host of Saturday Morning Law, a call-in radio show in California. Jonna also has been a regular legal correspondent and feature writer for various Southern California newspapers and websites. She is a member of the Volunteer Lawyers for the Arts, and is a published author in the San Diego Justice Journal. She has appeared on Court-TV as an advocate for civil rights, and currently practices in both San Diego and Los Angeles.