I learned about the Cooks Source plagiarism fiasco a little more than 24 hours ago, when there were a mere 300 or so comments on Cooks Source’s Facebook page, before  NPR, the Guardian (UK), Washington Post and LA Times blogs, and other heavy hitters had yet weighed in. Before the company’s Facebook comments were deleted. Before the Internet went mad.

My tardiness is due simply to disbelief: I’ve spent a good part of my idle time in the last 24 hours wondering if this can all possibly be true. To summarize, a blogger named Monica Gaudio wrote that she found out that an article she’d written on the history of apple pie had been lifted by Cooks Source, a little-known local cooking and recipe magazine (the kind you pick up for free when you spend $100 on a gourmet skillet at a specialty chef’s shop). 

So what’s the big deal? Plagiarism is rampant on the Internet. Just go to Youtube. Go almost anywhere.  Writers can work through their frustration and aggression all day long just by writing DMCA complaints and sending cease and desist letters.  Sure, it stinks, but it’s not like it’s news. 

Plagiarism: As American as a Stolen Article About Apple Pie 

Here’s Monica’s recounting of what happened next. To summarize: Learning of the unauthorized use of her article, Monica asked for modest compensation (an apology and $130 — which works out to roughly 10 cents a word –  to be donated to the Columbia University School of Journalism).  She was met by a response that I thought couldn’t be real. According to Monica, the editor replied, among other things, that ”the web is considered “public domain” and you should be happy we just didn’t “lift” your whole article and put someone else’s name on it!”  

The editor also claimed that “the article we used written by you was in very bad need of editing, and is much better now than was originally. Now it will work well for your portfolio. For that reason, I have a bit of a difficult time with your requests for monetary gain, albeit for such a fine (and very wealthy!) institution. We put some time into rewrites, you should compensate me! I never charge young writers for advice or rewriting poorly written pieces, and have many who write for me… ALWAYS for free!” (sic for the whole paragraph)

(And, while we’re on the subject of sic:  Cooks Source has no apostrophe. Not only that, but in her letter, the editor claimed to have edited another magazine, Housitonic Home. I happen to live seven miles from the HOUSATONIC River, and no, “Housitonic” is not some kind of acceptable alternate spelling. So here is an editor writing an error-strewn note to critique the work she allegedly stole, who can’t even title her magazines correctly? Even my spell and grammar checks are picking up these two mistakes.)

A New Cooks Source Recipe: How to Piss Off the Internet

The reply combined arrogance, ignorance, and plagiarism — which meant that in a single paragraph, one heretofore  unknown editor managed to piss off what seems like the entire creative Internet community. In the last 24 hours, the Internet has gone mad.  The last time I looked (last night) there were more than 2500 posts on the magazine’s Facebook page; this morning, the company had shut them down, but the furor goes on with other posts on blogs and websites  popping up every few sections on my Google news feed. By the time I get this posted, it’ll probably land on Google SERPs page 962. The formerly obscure magazine’s name is among Google’s top 20 trending subjects. 

I understand the furor: We’re all fed up with editors who don’t respond, who pay late, who don’t uphold their contracts. The industry is in a tailspin. And we’ve had it up to HERE with plagiarizers. So here comes this small potatoes editor with her two-bit freebie magazine, who hits all the wrong notes, combining condescension with ignorance (always a bad combination) and throwing in disrespect for copyright law and our creative work. She might as well have poured gasoline over her head and lit a match.

And Then the Posse Rode Into Town

It’s all a little like an old movie western, with the vigilantes riding out for justice: The Facebook brigade approached the magazine’s advertisers, some of whom pulled their ads. Posses went out looking for other examples of plagiarism, figuring that if the editor truly believed that “everything on the Internet is public domain,” she probably acted on that belief more than once. Sho ’nuff: Stories from the Food Network,  NPR, Martha Stewart, and Disney were uncovered.

And here’s the thing: If Monica is like the majority of Internet writers, the copyright notice she stuck on her article was as far as she went to protect her work. For full statutory damages, you have to file your work with the U.S. Copyright office.  I’m guessing Monica didn’t — but you can bet that Martha files copyright. And the Mouse. And statutory damages for theft of a registered copyrighted work can add up to tens of thousands of dollars, or more.   

So I’m left to ask: Can this be for real? The utter ignorance about copyright, the laughable grammar, the arrogance, and even worse, putting it all in writing? I’ve been taken in by a few Internet scam stories (you know, those Snopes-type stories where Itzhak Perlman plays a violin concerto with only three strings and so on).  But here, the only explanations I can come up with are colossal stupidity or a hoax.  

We’ve not yet heard from the magazine. If there is another side to this story, we’ve yet to learn what it is. Reporters’ calls have gone unanswered. Is there a possibility we’ve all been hoodwinked? I suppose there is, although for the life of me I can’t imagine what the rationale would be.  And what does this say about the juggernaut power and the mob-like vigilantes roused by an Internet gone mad? It sure seems like the good guys won in this case… but what about next time?

The path from submission to payment can be labyrinthine, but for the purposes of this article (getting paid what’s due), we’re going to skip through all of those gnarly acceptance issues and the corn-maze process of 13 editors reading and critiquing and rewriting your article 14 times. Let’s make some assumptions: Either your piece was  acceptable when you submitted it (and the editor told you so). Or ir wasn’t, but you revised it to the editor’s specifications. 

Now time has passed, you’ve invoiced, and there’s no check.  What you do is going to depend on many factors, including the contract you had with the publisher (For example, did it specify “payment on acceptance”?)

• Give the editor a reasonable amount of time to process your invoice, then e-mail a friendly, “Thanks for your note saying my article looked good. I’ve send the invoice, per the contract. Is there anything else you need to me do?”
• Your preliminary conversations with the editor should have elicited information about the path to payment: Ie, you should know who to send the invoice to, and you should have an idea of how quickly the publisher pays. Start the clock ticking, and keep track of where you are on the timeline. 
• Unfortunately, the next step is to start being a bit of a pain in the butt. The trick is to get paid without alientaing an editor who you might want to work with again. Often, slow payment isn’t the editor’s fault: she may simply be working for a slow-paying company whose policy is to take advantage of the “float” on unpaid funds. This is not a good thing — and most of us would prefer not to work for such companies. On the other hand, they aren’t deadbeats; they are simply playing a game that is legal under the rules of capitalism. Your role in this game is to be a squeaky wheel.
• Phone calls are even more unpleasant (for everyone), although the truth is, most often, you won’t get through. These days, everyone screens their calls, either with assistants and receptionists or with caller ID. Still, the appearance of your name on their message list may be enough to get some action. Sometimes you’ll have luck trying to get an editor before 9, after 5, or during lunch — editors often work long hours, and these are the times their phones are less protected by assistants and receptionists. Again, personally, I prefer not to play these games, and I prefer not work for people who clearly screen my calls and never return them. But I don’t make the rules here.
• Don’t be afraid to let the person you’ve been dealing with know that since you haven’t heard back, you feel like you’re forced to go up the ladder to find out what’s going on. IF she has been sitting on the invoice, this might shake it loose. 

At some point, it might become clear that you aren’t dealing with slow payment: You are dealing with no payment. Yes, Virginia, there are publications that outright stiff writers. This has only happened to me once (slow payment, though is an other thing….) and I did have some recource because the arrangement involved more than one party.

• Keep a record of any contact with the company, including phone logs and e-mails. If recording a phone call is legal in your state, do it. (Is it legal? Check out http://www.rcfp.org/taping/ )
• Your first written communications should be polite and firm. Some writers have had success quoting the contract, saying the process of submissions and acceptance, reminding the deadbeat that they have fulfilled all their obligations, and that you hope they will do the right thing and rectify the problem immediately, as you know they are an upstanding company. Hold off on the legal threats, except, possibly, to say that legal action is something you would hate to pursue. (This implies that you WILL if you have to — but no one wants to.)
• Further communications may get a bit more legal: I have also sometimes reminded slow payers that since they haven’t paid for my piece, they have no right to run it in their magazine. You might also say that since they are in breach of contract, you wish to withdraw your submission (do this if you know the issue has already gone to press — this would put them in a terrible position.)
• Make sure you are communicating with the right person. In addition to going UP the ladder, you might try going lateral – to accounts payable. 
• Keep the conversation civil. Your blood may be boiling, and you may have thought of no end of colorful names to call your deadbeat, but that’s not going to get you anywhere.
• Along the same lines, ALWAYS realize that the person you are dealing with might truly be caught in a Catch 22 that she can’t get out of… Try to give people the benefit of the doubt as long as you can,  because most are NOT out to screw you, and they will help you more if you keep it civil. This means not letting loose with your barrage of legal lingo and threats at first. First, when you find someone who may be able to help you, give them time and a chance to make things right. There will (unfortunately) be plenty of time to escalate the discussion.
• Remember that most people LIKE to think of themselves as the “good guys.” So approach them that way: Tell them you KNOW that this isn’t the way they normally do business, but something has gone wrong, and you need to ask them to cut through the red tape, do the right thing and GET YOU PAID. You want the person who can help you to be on your side.
• If that person simply refuses, and you’ve gone as high up the ladder and are certain that there is a real problem, you can remind them of legal recourse. Generally legal recourse either involves breach of contract or the copyright law.  Most non-payment issues are breaches of contract. (This means you soud have a copy of your contract — with everyone’s signatures on it. A lot of writers, in this day of e-mail, simply have copies of unsigned copies of contracts. While these have been held legally enforceable if it is clear that everyone has agreed to the terms, a signed contract is better). Be sure your work is copyrighted, as well: While non-payment is generally not a copyright issue, without paying you, a publication has no right to run your piece or sell your book. This is something to remind them of in your correspondence.  
• CC’ing a lawyer isn’t a bad idea, even if it’s only your sister-in-law who only does deeds and real estate. I was actually once told by an agent (through whom I was pursuing a deadbeat client) that “the cost of litigation won’t make this worth it.” “I’m sure that’s what they are counting on,” I said. “But I’m lucky: I have lawyers in my family, so I don’t have to worry about the cost.”  
• Get help from any writers’ groups you belong to. Some provide a grievance committee or (limited) free or low-cost legal advice.
• Post questions about the non-payment on writers’ boards: You are warning other writers away, and this is also a chance to find out if others are suffering the same problems, or what they did to shake loose the money. 
• Small claims court is an option (although collecting a judgement can be a problem! A true deadbeat who is contemptuous of his contractual responsibilities under the law may also be contemptuous of a judgement — you may have to hire a collection agency.)  Each state runs small claims differently; you may have to appear in person, the amount you can sue for is limited, and you may not be able to use small claims if your business is incorporated. Nonetheless, many writers have had to go this route.

Don’t let it go! This is your livelihood — and non-payment is stealing.

Our U.S. Copyright Act is not the most creator-friendly legislation one could imagine. While big companies — the ones that buy up the rights to popular songs and cartoon characters — have been able to use it very effectively, the protections it offers small-scale individual creators is less helpful. First, in order to have meaningful protection for anything you create, you have to register it with the Copyright Office. Second, litigation is expensive, impractical, unwieldy, drawn out, and too often ineffective.

Add to this the fact that the kids being brought up with the Internet are seldom educated about the entire idea of copyright: To them, everything on the Internet is supposed to be “free.” Fortunately, the Digital Millennium Copyright Act does give recourse to creators who find their work used without permission on other people’s websites.

However, there are instances where you ARE allowed to use a part of someone else’s work. “Fair Use,” as it’s called, is the idea that while the creator does have rights, they are not exclusive. Other people MAY use a part of your work if that use meets certain tests: The following four issues are considered:

• What is the purpose and character of the use? Educational and nonprofit usage gets more leeway — but not a free ride. Commercial use — something that YOU will profit from — is treated more strictly by the courts.
• What is the nature of the copied work? Is it a highly creative poem or song lyric, or is it a simple list? Highly creative work gets more protection than simple info bytes.
• What is the amount or substantiality of the part you wish to copy? The law doesn’t give specific guidelines, but here are some examples: You might be able to use one or two lines of a song, but not more; From a book, you might be able to use 200 or so words. From a magazine article, you might be able to use a paragraph.
• What is the effect of the copied use on the original’s value or marketability? If, for example, I write out the sheet music to a song, I am directly competing with the owner of the print rights to that song: Someone may not buy it from them if they can get it for free from me. Even if my use is educational, it is not “fair use.”

In all cases, with fair use, the name the copyright owner must be given and acknowledged. Fair use is NEVER fair if you don’t attribute the work. (In that case, it’s not fair use, it’s plagiarism.)

Fair use is an important concept: it acknowledges that society benefits from having access to information, and that if the creator is not harmed by the use, that there should be some way for others to quote from it in their own intellectual pursuits. Unfortunately, all of this is open to interpretation:  Courts have ruled differently in different cases, trying to apply a “reasonable person” standard. Of course, as we all know, when it comes to litigation there is nothing reasonable about it.

They are stealing your words and your pictures, your songs and your performances, and they are using them  and even reselling them all over the Web.

Don’t believe me? Do a little vanity surfing… If you’ve got a body of work that has gotten out to the public, chances are that some of the public have appropriated it for their own uses. Google your name, and you might find your articles on websites that never paid you to post them.  It happens all the time.  

Sometimes, the intent is benevolent: They like your stuff, they give you credit, maybe they even link back to your blog, or link to your Amazon page, where people can buy your book. In many cases people don’t know that what they’re doing is against the law. Unfortunately, in some cases, they don’t care.

What do you do? Some see the exposure as good publicity, others see it as outright theft; In point of fact, it is sometimes both, and you have to decide: Is it worth the hassle to pursue the issue? Is the exposure worth something? How much time are you willing to spend chasing down people who steal your copyright? Some people try to go after every violation; Others only go after major companies who have deep pockets and should know better. Others don’t bother. 

Sometimes the intent is not benevolent. Websites that plagiarize your work might copy it, or a part of it, without attribution, and try to pass it off as theirs. That’s just out and out stealing, but these kinds of thefts are harder to spot, because you have to be much more clever about how you search. Searching for key words, unique phrases, or combinations of topics, or whole strings of text are ways to find plagiarized copy. 

Once you’ve found an instance of an unauthorized use, you have several options.  You might write to the offender, explain that your property is YOUR property, and ask them to take your work off of their site. You could bill them for it. (Although this is usually unsuccessful, sometimes you’ll get a check in the mail, especially if you have registered the Copyright, which gives you strong legal protection.)   You could threaten to sue them (although, again, in order to do so, you should have filed a Copyright for the work with the US Copyright office within 90 days of first publication, or BEFORE the infringement — more on Copyright in another post). You could write to the Website’s host and fill in their complaint form — if you can prove your ownership of the material,  the site may be taken down.

Here are some resources to get started. I’ll cover copyright in more detail in future posts:

US copyright information from the Copyright office:  www.copyright.gov

The text of the Digital Millenium Copyright Act, which extends and clarifies Copyright protection of internet material:  www.copyright.gov/legislation/dmca.pdf

Wikipedia article: http://en.wikipedia.org/wiki/Digital_Millennium_Copyright_Act

Google information on how to contact Google about a site that violates your copyright: http://www.google.com/dmca.html

For a whole different take on the issue, check out Creative Commons,  which explains how creators can decide which rights they wish to retain, and which rights they are willing to give away:  http://creativecommons.org/

Our American copyright laws are full of holes, and they don’t adequately protect ordinary creators. The ease of copying is having a huge effect on all aspects of the creative economy; it’s one reason why music stores are shutting and will soon be a thing of the past.  

The important thing to remember is this: YOUR intellectual property is YOURS. If you want to take a Creative Commons License, fine. If you want to try to bill unauthorized users for their use of stolen material, go ahead. if you want to report a site under the Digital Millennium Copyright Act, do that. if you want to shrug it off, you can do, too. But it’s well worth a couple of vanity surfs to check who’s using your stuff.