Non-fiction Writing Course

In this final session we will be looking at the small print to keep you on the right side of the law:

• finance
• copyright
• libel

Before we begin, a quick disclaimer: these are complex, specialist topics, of which I will only be able to scratch the surface here. I am giving you my understanding of these issues after having worked in the industry for 17 years. However, I am not a qualified lawyer or financial adviser. So please check with a suitably qualified professional before basing any decisions on the following.

Finance – tax

Tax, a word to make even a grown man cry! Still, you need to stay on the right side of the law unless you want to suddenly find yourself writing your next article for the Insiders’ Gazette! Catch my drift…?

In general, the following comments are based on the UK system, but I’m sure most other countries will operate in a similar way. I advise you to check with your local tax office or a properly qualified tax adviser if in any doubt.

If you submit articles for publication with the intent of being paid, you need to register as a self-employed person with the Inland Revenue in the UK (call 08459 154515 to register or for advice), or the equivalent in your country (In the USA log onto the IRS’s small business / self-employed section). You need to do this even if writing is not your primary occupation, you are retired, on benefits or otherwise unemployed. Check with the IR helpline how this will affect any welfare benefits you may receive. As long as you work less than a certain number of hours a week it should be OK, but you should check this threshold with your benefits agency.

You may be employed and self-employed at the same time. For example, if you work as a teacher but write the occasional article as a hobby or for extra money, you will need to register as self-employed for your writing income – even if you don’t earn very much. You can earn up to £4,700 a year in the UK before you have to pay tax, but you still need to fill in a tax form, even if you have lost money through writing! Too many ‘meetings’ over coffee…

You should keep detailed records of all income and writing-related expenditure (with receipts). Amongst others, books for research, magazines for market research, travel expenses, stationery, computer and camera equipment and writing course fees may all be deducted from your income to reduce your tax bill (if any is due). You can also deduct a proportion of your home utility bills, but this is complicated and may not be worth it.

At the end of each tax year you will have to fill in a self-assessment tax form. If you already fill one in, simply request an additional ‘self-employment’ page. The Inland Revenue offer free workshops for freelancers and self-employed people to help you get started, teach you how to deal with finances, tax etc. If you can’t get to one, they will send someone to your home. Check out their website www.inlandrevenue.gov.uk or in the USA www.irs.gov/businesses/small.

Exercise 27:
If you haven’t already done so, register with your relevant inland revenue service. Don’t worry, they’re pretty user-friendly (in the UK, anyway!) and if you’re lucky, you’ll actually get tax back from them. When they ask you your business name, just give your name eg Fiona Veitch Smith, Freelance Writer.

Finance – rates

As soon as an article has been commissioned, you should enquire about rates. This can be as little as £30 an article or as much as £1000, with the average being £100 to £250. Some magazines pay an additional rate for photographs used (anything from £20+). As I work primarily in the UK, these are obviously British rates.

Once you’ve agreed to the rate, you should invoice the publication – I usually send this with my article, although sometimes a magazine will request that you send it in the month of publication. Either way, you should expect payment at the end of the month of publication, although very occasionally you will be paid on commission. Have a look at my article what to do when you don’t get paid for advice on how to deal with publications that are less than forthcoming.

If for some reason your article doesn’t appear at the agreed time (sometimes this can be as long as 18 months!) you should request a ‘kill fee’. This is a percentage of the agreed amount – 30% to 40% is fair, although some writers demand 100%. You can note this in the small print at the bottom of your invoice. Reality check: this is more likely to be paid in the USA than the UK.

If someone would like to reprint your article the average rate is 30% to 40% of the original fee. Note: unless otherwise negotiated, one fee equals one print run!

Copyright

I recommend you read Michael Legat’s seminal book An Author’s Guide to Publishing for his discussion on copyright. You may also like to look at my article on protecting your copyright which first appeared in Writing Magazine. You could also request a fact-sheet from the Society of Authors (in the UK) or the American Society of Composers, Authors and Publishers. And for my antipodean friends (I am, afterall, writing a series of children’s books set in Australia) the Australian Society of Authors.

You do not have to register your copyright; once your article is ‘fixed’ in a written or recorded form, copyright is automatically attached to it. It’s good practice to date your articles so you can prove when it was first written. If you’re really paranoid, you can post your article to yourself in a recorded delivery envelope and file it unopened until a dispute arises, but in my opinion this is overkill. Just today I was asked by someone how she could protect her non-fiction book idea on ‘bloomers’ (yes, bloomers!) and I had to tell her that there is no copyright in an idea or title. Some writers and editors can and do ‘steal’ these. And, in her case, because she intended to interview other internet users as part of her research, I warned her that if someone decided to nick her idea, there was nothing she could do about it.

See for example the recent outcome of the Holy Blood, Holy Grail / Da Vinci Code trial which illustrates the point. The judgement determined that the concept and ideas of the former non-fiction book could not be protected by copyright, only the form of the words as they appeared in the text. (Sorry, but I can’t help pointing out that both books are published by the same publishing house – Random House – so one can’t help wondering if the whole trial was just a publicity stunt!)

Copyright notes

• As in music, the copyright exists in the way the words are strung together. You can have the same ‘notes’ or ‘words’ but put them in a different order and you have another composition.
• The photographer or the photographer’s employer hold the copyright of any photos taken and should be paid out of your fee – around 20% is fair. Always give a ‘pic credit’ for any photos used.
• You should only ‘sell’ the rights to reproduce your work to each magazine once. Write ‘First British Serial Rights’, ‘First North American Serial Rights’ (covering USA and Canada), ‘First Australian Serial Rights’ etc., on your cover sheet. If it is a reprint of an article that has already appeared, it will be ‘Second British Serial Rights’ etc. Generally less money is paid for second rights etc.
• Remember, electronic rights are separate from print rights and you should be paid a separate fee if a magazine is going to place your article on their website. Sadly, this doesn’t always happen, and editors need to ‘reminded’.
• Copyright is held in each country your article appears in. So if you sell to an Australian mag, it will be ‘First Australian Serial Rights’ etc.
• Some magazines want to buy ‘all rights’ or ‘world rights’ but you are in no way obliged to agree to this. If they insist, you should negotiate a higher rate than for ‘first rights’. If they say no, be prepared to lose the commission. While building your portfolio you may not want to do this, but don’t let them get away with it for long!
• You can resell an article to another magazine as ‘Second Rights’ but it is better to rework it for the new market. That way, it becomes a new article with a separate copyright which you can then sell as ‘first rights’.
• It is bad practice to rework the same article within the same market (eg the women’s magazine sector or the culture and heritage sector) in the same year. Wait a couple of years before you sell it again. However, you can sell a reworked article to a different market in the same year as it will not be in competition with the original title.
• Copyright exists for 70 years after the author’s death in a written work and 50 years after the first recording in a broadcast work. That’s why Cliff Richard is currently challenging the broadcast copyright law, as his recording of ‘Living Doll’ is 50 years old.

Quoting from other work

There is an on-going debate about how much you can freely quote from another work before being liable for copyright fees. Michael Legat believes it is no more than 20 words! I would go as far as to say 100 words as long as you quote the author and source and give them full credit in your text. Remember, the form that this credit takes differs according to the magazine you are writing for. See the section on sources in the session on how to write a feature article. For educational purposes, you can quote / photocopy up to 20% of a printed text, but if you expect to earn any money from it, this is not allowed. Copyright also applies to work published on the internet.

There is a current debate between the Society of Authors, and Google and Amazon as to how much of an author’s work they can freely display in the ‘look-inside feature’ of their promo material – at the moment they default to showing 20% (although this is configurable by the publisher), but the value is being queried by some authors. Amazon’s point of view is that customers are more likely to buy a book if they can browse some of the content to see if it delivers what it promises on the cover, and as authors perhaps we should encourage initiatives to increase our sales. On the other hand, this works more in favour of fiction writers, while non-fiction writers face the risk of people viewing 20% of their work for free for research purposes and never buying the whole book. Feel free to weigh into the debate in the comments at the end – I’d be genuinely interested to hear your point of view.

When using someone else’s photographs you need to ask permission from the copyright holder (see above on ‘Copyright notes’) and need to be prepared to pay for the privilege. However, there are many royalty-free stock photography sites online that only require you to refer back to their site in the pic credit.

Exercise 28:
Make a note of any copyright issues you may have encountered or need to have clarified and find the answers. Make sure you give credit where credit is due.

Libel and defamation

This is a very complex area of law. Very simply, if a person or organisation feel that you have portrayed them in a bad light that will influence the way they are perceived by the public, they can sue. There are a number of defences such as ‘public interest’ and ‘freedom of the press’. However, it is for a judge to decide whether or not they have a case. The difference between libel and defamation is that the former is written, the latter spoken.

Legal notes

• If the subject of your article / book claims that they have been libelled, they will usually sue the publisher (as they have more money) but although unlikely, you may also be sued.
• If something is ‘sub judicae’ – that is the information you revealed in your article is already the subject of a court case – you can be convicted of contempt of court.
• Revealing the identity of a minor in a sexually aggravated case can also get you into trouble. This could be a problem in ‘confessional’ articles.
• Although difficult for non-legal people to understand, something that is true can still be defamatory. For example, if your interviewee tells you in an unguarded moment that she once had an abortion, and you include it in an article that isn’t about the abortion, she could sue for defamation.
• To protect yourself, make sure your subject knows that everything is ‘on the record’. If they’re desperate to tell you something off the record, conclude the interview first.
• Always keep your notes and recordings of all interviews for up to five and a half years after publication.
• Often interviewees will tell you something ‘on the record’ then change their minds afterwards. They have no right to do so. Protect yourself by keeping records.
• Some interviewees will ask to approve the article before it’s published. This is strongly discouraged in the industry as it amounts to censorship. It may also cause you to miss a deadline. If you struggle to say no, agree to them checking facts only (names, dates etc). Do not bow to suggestions on how something might be ‘better phrased’. If they do see it, warn them not to distribute it to family or friends etc before publication or this can amount to a breach of contract between you and the publication.

For more information on any of the above contact the National Union of Journalists.

Exercise 29:
Consider which of these scenarios could be libelous:

1. On your way to interview someone regarding her dispute with a local council about the building of a youth centre next door, her neighbour collars you and tells you your interviewee abuses her border collie. You decide to print the accusation.
2. You are writing a book about the break-through work of an ornithologist and you discover that he’s been up to a bit of bird watching of the human variety: you include it in the book.
3. You write an article on behalf of the organisers of a folk music festival who have been denied a permit to perform on the village green. You discover that the chairman of the board that reviews the permits, is having an affair with a rival festival organiser. You decide to publish your findings.

In case 1 – you could be sued for libel as the alleged maltreatment of a dog has nothing to do with the granting of a permit to a youth centre. However, if the permit was being given for the building of a dog shelter, you would have just cause. In either scenario, you could and should still report your information to a local animal welfare charity, but you couldn’t publish it. You could, however, publish the findings of the animal welfare investigation, after the case is closed.

In case 2 – you could not include any of the information about the extra-marital affair as this would be construed as libelous. However, if the ornithologist was Prince Charles, you could publish it as certain public figures’ private lives, sadly, fall under the ambit of ‘in the public interest’.

In case 3 – blow the whistle as loudly as you can! This is a blatant case of deception in public office and it is certainly in the public interest to reveal whether or not a civil servant is in bed with a stakeholder in such a controversial case.

Well, that brings us to the end of our journey together (sniff!). I hope you’ve enjoyed this course as much as I have. It’s been a delight getting to know some of you and I hope you will continue to visit. Please drop me a line if you would like an in-depth critique of any of your work. But if you don’t have any cash right now, don’t worry, there’ll always be free info and friendship at The Crafty Writer. Adieu!