How to Protect Yourself from Editorial Theft

by Kyle Looby

Imagine this scenario: you pitch what you think is a great idea to a national publication. Apparently the editor thinks it's a great idea, too, because she calls you asking for more information on the article you want to write. She wants to know who your sources will be and where you'll be getting your information. Thrilled that you're getting an assignment with a big-name magazine, you tell her what she wants to know. In the days that follow, you expect a contract in the mail, but what you receive instead is a message on your answering machine telling you that the publication is going to use your idea, but with another writer at the helm. You receive a finder 's fee of $250, when you could have received $2500 for writing the article.

"Editorial theft" has been getting a lot of attention lately since word has gotten out that Family Circle and Rosie, two high-paying publications, have offered writers who have queried them a finder's fee for ideas. [Editor's Note: Rosie, formerly McCall's, is now defunct.] While some writers would be thrilled to get any money at all, others don't feel that way. Since ideas aren't copyrightable, this issue isn't a legal case of copyright infringement, and it would seem that writers have no recourse if their ideas are "stolen." But there are a few things writers can do to protect themselves and to fight back if they are victims of editorial theft.

Stay on top. The editorial theft policies of Gruner + Jahr, publisher of both Rosie and Family Circle, have been discussed on Inside.com, Writer's Digest, and in the National Writers Union's newsletter American Writer. From there the word trickled down to the various email discussion groups for writers. What writers know about a publication's business practices may influence whether or not they query that publication. Some writers will choose to stay away from publications that practice business this way; some writers will be happy to receive any money at all. Writers should have a choice, and they won't if they aren't aware of what's going on. Stay on top of news in the writing world so you can make informed choices.

Watch what you say. When pitching an idea, writers are supposed to let editors know what the article will be about and what points are going to be covered. That's all well and good, but you don't want to give away so much information that someone else can write your article. Veteran freelance writer Jack Ewing agrees, "Unless you're certain of the loyalty of your sources, it's a good idea to indicate only that you have access to sources that will only be divulged once the article has been assigned and a contract signed; queries should only outline an approach to an article, and a source should be referred to only as 'a nationally known expert in this field,' or something similar." Give out just enough information to make the editor want to know more, but keep the meat of the article to yourself until you have a signed contract in hand.

Confidentiality Clause. There is a legal way that writers can protect their ideas from being developed by another writer: a confidentiality clause or nondisclosure agreement. According to Frank Fee, National Writers Union Contract Advisor, as said in American Writer, "There's a fairly obscure civil wrong called 'breach of confidentiality,' which involves the writer's getting a potential buyer to promise that the story can't be developed by any other writer." Up to now, this doctrine has only been applied to movies, but that doesn't mean freelance writers can't use this in pitching article ideas. Jeff Gordon, intellectual property attorney, says that writers can include a line in their query stating that reading the query constitutes agreement to a nondisclosure agreement and that should hold up in court. "However," Gordon cautions, "Someone who is low enough to steal your ideas is also crafty enough to find a convincing argument as to why your little one or two sentence agreement didn't cover their specific activity." Just because freelancers have never used confidentiality clauses before doesn't mean we can't. If enough writers do it, publications won't have much choice but to accept them.

Run to the Competition. If you find out that a publication is going to use your idea and assign it to another writer, one thing you can do is run straight to their competition. Tell them Publication 1 is going to run a story on your topic and pitch the idea to them. If you have the article written, you can let Publication 2 know so they can run the story first. Ewing says, "I would have no qualms attempting to sell the idea/article to a competing publication, and I would try to do it as quickly as possible, in order to beat the first publication to the punch, and perhaps teach them a lesson that they can't treat writers who supply them with vital content in such a cavalier manner."

Spread the word. Angela Adair-Hoy has suggested having everyone you know send a letter or email to someone who owes you money for writing. Why not do this to a publisher who has taken your idea? If you are offended by a publication taking your ideas, spread the word. Tell every writer you know. Get your discussion lists involved. Freelancer Anna Morvee suggests setting up a website where writers can sign online petitions protesting unfair treatment. If every writer sends a protest letter to these offending publications, we can affect the quality of submissions these publications receive and force them to change their policies.

Freelance writer Peg Louden says, "I can see a non-writer being thrilled to get a "finders fee" for coming up with an idea, but what would this do to freelancers?" Don't let it do anything to writers; fight back. We can, if we do it together.

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