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Story stolen by national newspaper

 
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aphorismus317
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Joined: 31 Jul 2014
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Location: London

PostPosted: Thu Jul 31, 2014 7:42 pm    Post subject: Story stolen by national newspaper Reply with quote

Hello all -- I am new, so please be gentle with me!

Outline of situation:

In 2009-10 I wrote a book. In 2011, with the aim of publicising it in advance of release, I turned a key part of the book into a newspaper article (not an uncommon practice, as I'm sure you're aware).

I submitted it to a well-known national newspaper, which I was 100 per cent sure would be interested (daily circulation in the hundreds of thousands, can't say more without identifying them).

This newspaper then sat on the story for three years, while the book died slowly in the darkness. The newspaper then ripped the story off, using it as a front page exclusive under another writer's byline.

Fortunately (for me) they didn't even steal it properly, and around half of the article was a word-for-word reprint of what I had submitted.

At some stage, they paid 500 into my bank account (without telling me!) and have since claimed that I was paid for my story and so should shut up and go away.

I have enough nous to know that in the absence of a contract (there never was one) they've infringed my copyright, and that the payment of an unagreed sum cannot be taken as completion of an agreement.

So they're bang to rights there.

I informed them of the infringement >28 days ago, during which time the digital version of the story has not been removed from their website.

Earlier this week. I sent them a copyright takedown notice. 48+ hours later, the story is still there on the website.

I'm now at the stage of preparing to issue a claim against them. I think it's going to end up in IPEC because part of the remedy has to be an injunction, which they are obviously resisting at the moment (for a start, a permanent hard copy of that day's paper exists).

Trouble is, I don't have a clue as to how to begin to quantify the monetary value of my claim.

Any wiser heads out there have any idea?

The letter of claim has to be quite precise, but I note that IPEC accepts cases in which the claimant doesn't know how much he's after -- which seems a little odd to this layman.
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AndyJ
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PostPosted: Thu Jul 31, 2014 10:51 pm    Post subject: Reply with quote

Hi Aphorismus,
I suspect that in the long run you may need to go and get some legal advice from your own solicitor, but let's start the ball rolling.
I am not convinced from what you have told us that this is actually straightforward infringement. It is clear that you and the newspaper had not agreed any terms, but you submitted the article on spec (I assume they didn't approach you first) and so it may well be seen as implying that you were giving them permission to publish your article.
However what was printed was not your article but a heavily adapted (they might say 'edited') version. Clearly they retain the right to edit a piece to fit the space available etc but they should most certainly have credited you as the author or co-author. However given the extensive re-working perhaps you would not wish to have your name associated with the published version. I assume this is so because you wish to get an injunction forcing the removal of the online version*, rather than an acknowledgement of your contribution.
Instead we have a form of plagiarism. This is not entirely unheard of in the world of journalism (and certainly not within churnalism which I think is how your piece has been treated).
However you didn't really ask for advice about the sort of infringement which might be involved, but how to calculate the level of damages you are seeking. And this needs to take into account the 500 you have already been paid. Bear in mind that ordinary damages are intended to put you back to the position you would have been in if the use of your article had been properly agreed beforehand. On that basis 500 may actually be a fair amount - I can't say because I have no idea of the value you would have put on your work had you been able to negotiate. Here's a link to the NUJ guide to freelance rates which might give you some idea of the 'worth' of your article. But the figures they quote are very imprecise, so you should not base you calculations on the best case, given that the newspaper will doubtless argue that they could not use the article in the form you presented it and it required a lot of re-working, hence a lower fee might be appropriate.
However since they have acted in a high-handed way, and bearing in mind that the online version has still not been removed, there may be grounds for asking for additional damages in respect of flagrancy. If such grounds exist, the court will probably wish to set its own level of 'punishment'.
What I don't think you can argue is that by publishing this adaptation of your work, the newspaper has in any way damaged your prospects of publishing the book. When you submitted the article, I assume that you had considered this aspect and on balance decided that the article could improve rather than impede the chances of publication of the book. The fact that the article took a different form cannot be said to alter your initial assessment, albeit you did not benefit from the credit.
Once you have arrived at the figure you think represents the true level of damages, deduct the 500 and see if the amount remaining makes it worth the cost and hassle of going to court. Bear in mind if you use the small claims track of the IPEC, you will only get limited costs awarded to you if you win. This process should then help you see if you can afford to get some legal advice (minimum cost is probably going to be in the region of 300 - 500 depending on the experience of the solicitor you consult). I think you will need this because although you can represent yourself in the IPEC, you will be up against a formidable legal team from the newspaper, and this is a complicated action. You will need to ensure that your particulars of claim are precise and fall within the legal protection of the Act. To establish this you need to show that a substantial part of your piece was copied; that you did not authorise this copying and that the fee paid does not represent fair remuneration. On top of that there is the issue of your moral right to be credited as the author (or even co-author with the other journalist), but this may fail if you did not assert this right when submitting the article. Because your case is inevitably something of a house of cards, you (or your solicitor) need to include alternative arguments to counter the defences that you anticipate the newspaper will use. So for instance, if they say that it was implicit in your submission that the authorisation was given for them to copy and publish your work (sections 17 & 18), then the alternative argument might be that publishing an adaptation (section 21) was not authorised or contemplated at the time of submission. Or if they claim that their use of your work falls within the section 30 fair dealing exception for news reporting, you need to argue that the extent of the copying was not fair dealing and your contribution was not acknowledged as the exception requires. And so on for all the points you will wish to raise in support of your case.

And you need to be clear about the remedies you are seeking; if you want fair remuneration for your work, then this does not sit well with an injunction which prevents the paper from fully exploiting your work. If your aim is an injunction to get the online version removed, would aggravated damages also be appropriate? Do you in fact want a printed correction acknowledging that the article which appeared was in fact based on your research etc, in which case the injunction would not be appropriate.

I wish you luck. This won't be straightforward.



* I think it is highly unlikely any court would issue an injunction concerning hardcopies as this would be impossible to enforce.

Afternote: Here's a useful bit of advice on the subject of copyright and freelance journalism, also from the NUJ website.
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Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007
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Nick Cooper
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Joined: 30 Jun 2013
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PostPosted: Tue Aug 05, 2014 2:16 pm    Post subject: Reply with quote

Interesting to read this, as coincidentally I've only discovered today that just over a year ago a regional newspaper published a heavily-edited version of an article I put on my website in 2005. I say "heavily-edited," but while it's been reduced from just under 4,800 words to just over 830, many sentences and even whole paragraphs are exactly the same. I see from the NUJ rates for regionals that those 800 words should be worth in the region of 400 if they'd simply asked me to edit down my own work....
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