Imagine for a moment you have been working hard on your writing all morning. You stomach is empty and your eyes are aching. You step out for a break at the local coffee shop. You have thirty five dollars in your wallet. You can almost taste the confections displayed in the glass case and you can smell the fresh coffee brewing on the bar. Suddenly a threatening stranger demands that you turn the contents of your wallet over to him. Would you quietly do as you are told only to go hungry and watch as he spends your money on a stack of tasty snacks?
Web content mills demand that freelance writers hand over their Intellectual Property, their copyrights, for free. When a writer signs either electronically or on paper a “Writer’s Agreement” or similar so-called “contract” agreeing to submit work acting as an independent contractor or freelancer and that agreement includes a clause that requires that the writer upon submission release all copyright interests he has in his work regardless of subsequent approval and payment he falls prey to the content mill’s copyright high-jacking scam. The copyright to a work submitted for approval and payment has significant value to a writer because even if a piece is rejected on one forum it can be rewritten and resold on another. And over time, the loss of the copyrights to original material that could have easily been resold creates a tremendous loss of income, creative time and effort for the writer.
Aviso: beware of contractual clauses similar to the following:
“Writer agrees that each Submission is a work made for hire. Upon Writer’s Submission of an Assignment, any Intellectual Property Rights in the Submission will be the sole and exclusive property of [Company name removed], and [Company name removed] will be deemed to be the author thereof. If Writer has any rights to such Intellectual Property Rights that are not owned by [Company name removed] upon Writer’s Submission, Writer hereby automatically irrevocably assigns to[Company name removed] all right, title and interest worldwide in and to such Intellectual Property Rights. Except as set forth below, Writer retains no rights to use such Intellectual Property Rights and agrees not to challenge the validity of [Company name removed] ownership in such Intellectual Property Rights.”
The clause appearing above is a common “blanket copyright assignment” to which writers are forced to assent if they want to sell their work to a content mill. Under these illegal contracts a writer’s copyright is high-jacked upon submission of an original work regardless of a subsequent editor approval and company payment for the work. Upon submission, and without more, the “content mill” seeks to be deemed the “author” and the “copyright owner” of the writer’s work.
The Scheme and the Fraud
Once the content mill establishes a relationship with a talented writer the scam will begin to kick in. Editors will begin finding frivolous reasons to reject meritorious work. The writer will receive no payment the hard work reflected in his submissions. After the writer receives notice that his work has been rejected “in-house editors” will quickly move to make insignificant edits on the writer’s submission, acting themselves as highly paid piece work freelancers, and the writer’s rejected submission will then be ready for be used by the company for free. Writers need to steer clear of this fraud and refuse to allow their work to become fodder for their machine.
An Agreement is a Promise Traded for a Promise
But wait, can they do this? Are these agreements legally binding on a writer? Has the copyright validly transferred to the content mill? In general the answer is no, the content mill does not have a legally binding agreement with the writer and ownership interests in the writer’s copyright have not validly transferred. The reason is twofold, (1) a contract that does not meet all the legal requirements for contract formation is no contract at all, and (2) a fraudulent contract is a voidable or void contact. Where no valid contract exists there is no mechanism or function to transfer the writer’s copyright to the content mill. If the work has been used, such as posted online somewhere in some form, the writer has a right to go ahead with “take down” requests and infringement actions should he be able to uncover facts that show his work was used without payment, license or permission.
In order to be legally enforceable an agreement must have four elements without which no legally recognizable contract ever arises and those elements are: (1) mutual assent, (2) consideration, (3) capacity and (4) legality. The element that most commonly fails content mill agreements is consideration. Consideration in the context of a contract is a benefit or detriment which a party to the agreement either receives or gives up which reasonably induces them to enter into the contract. In content mill agreements the writer gives up upon submission not only his original content but valuable property ownership interests in his copyright. The content mill however neither gives up nor bestows anything at all in return to the writer. Most content mill agreements have no genuine or legally recognizable consideration and as a result, no legally binding contract ever forms with their writers.
Writers Protecting Writers
Writers need to appreciate that every time these content mills succeed in stealing content under a fraudulent “work-for-hire” agreement they undermine not just the individual writer and the individual writer’s property interest in his copyright, they threaten and erode the rights and interests of all writers. It is important for writers to quickly recognize and refuse provide work for content mill under these types of improper agreements. With nothing but substandard content to broker these mills would soon be out of business. Let them advertise at all the sites on the Internet but all the writers out there in turn know them for what they are and take steps to avoid them at all costs.
Creative and intelligent minds that want to be able earn their living by using their writing talents must begin by recognizing their own worth on the open market. If you devalue yourself and your work but agreeing to being fleeced by a “content mill” contract, then know too that you are contributing the overall diminishment of the market value of all writer’s work. If it isn’t a genuine work opportunity then don’t waste your time or your talents on it. Real jobs and genuine freelance offers and opportunities are out there. Don’t work with any employer or client that doesn’t reasonably recognize your talent, your property rights and interests in your copyright or the value of your services in the current marketplace.
Christine Varad is the principal writer and editor for Varacolors Media. She earned her JD in law from New England Law and holds a BFA from Massachusetts College of Art and Design. As an artist and a lawyer she has a long standing interest in Intellectual Property law and promoting the rights and interests of writers and visual and performing artists.