0

Recently I was reached out by a reporter asking if I can write an article about an online software product of mine:

I was hoping that someone at $organization might be willing to write an article explaining what you do, the history of the organization and how it works.

After some back & forth, and about a week of work, I wrote a detailed article about the niche, summarizing our findings, and explaining how we solve the problem.

Reporter come back to me:

Our editorial policy/guidelines does not allow us to publish articles that could be interpreted as endorsing any business where fees are involved even if the organization is a non profit. Therefore our editor will be tweaking your piece to fit our guidelines.

They have specifically asked about the business, with no mention of this policy prior to me performing the work. They have put it in writing, that they will not be honoring the payment of mentioning the product. To me, this imports as classic bait&switch.

Is this legally actionable? If so, what are maximum damages under penalty of law, that I can seek?

And a what-if scenario: if damages are >$500, can I come back to them basically saying, that they can either run the original article as a full page advertisement (which is, according to their listing is $200), OR I will push this through court?

Many thanks.

  • 1
    You're missing one alternative: just call the whole thing off and both parties walk away. – user3851 Jun 1 '16 at 20:50
  • 2
    "They have put it in writing, that they will not be honoring the payment of mentioning the product." I don't understand this sentence. Did they promise to pay you for writing the article? Do you have a written contract as evidence of that promise? – Nate Eldredge Jun 1 '16 at 20:58
  • @NateEldredge : "meeting of the minds" regarding writing the thing was that I write about the product, and get publicity for the product, in exchange of also including our research & findings regarding the niche. No contract. – Gabriel Belinsky Jun 1 '16 at 21:08
  • 1
    So, if I understand correctly, they did not promise to pay you in money. But you had an expectation that they would publish the article you wrote, without substantial changes? It would be surprising for a reputable publication to offer that; they would normally retain "editorial control" to make the final decision about whether to publish. You might be able to refuse the changes they propose, but in that case they would probably not publish the article at all. – Nate Eldredge Jun 1 '16 at 21:10
  • Not without minor edits, but the article was explicitely asked to be about the product. – Gabriel Belinsky Jun 2 '16 at 0:30
3

On what grounds would you sue?

Contract

Well, I think that you would struggle to find the necessary elements (see What is a contract and what is required for them to be valid?)

In particular, you would struggle to prove that there was intention to create legal relations on their part and possibly on yours. Are you able to identify in your "back & forth" a clear, unequivocal offer and acceptance?

Without knowing the details of the "back & forth":

I was hoping that someone at $organization might be willing to write an article explaining what you do, the history of the organization and how it works

appears on the face of it to be a request for a gift; not an offer to treat.

Promissory Estoppel

If you don't have a contract then it is possible (IMO unlikely) that they induced you by your actions to commit resources (your time in writing) in anticipation of a reward (them publishing what you wrote).

To be estopped they would have to have known that you were writing the article in the expectation that it would have your organisation's name in it, that they did not intend for that to happen and that they allowed you to invest those resources notwithstanding. If you can prove all of that then you can require them to do what they promised. The big difficulty I see in this is did you tell them that a) you were writing the article, b) it would have your name in it and c) you expected it to be published in that form.

Copyright

If they publish the work or a derivative work without your permission you can sue for breach of copyright. As it stands, they probably have an implied licence to publish and you would need to explicitly revoke that.

Options

There are two reasons to go to court:

  1. Money
  2. Principle

If you are going to court for money then this is at best a risky investment and at worst a gamble: balance your risk and reward carefully. If you are going to court for a principle then I simultaneously admire your principles and think you're an idiot.

Make a deal

Explain that the reason that you wrote the article was a) to support their fine publication and the fantastic work it does (even if you don't) and b) to garner good publicity for your organisation. You understand and admire their strong editorial stance (especially if you don't) but the article involved a considerable amount of work and could they see their way clear to give you a significant discount (~80%) on a full page ad facing the article.

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.