Freelance writer Robert Bundy wasn't expecting to get much money when he sold a pair of stories to M Magazine earlier this year – $110 for each, plus $80 a pop for some photos he took to accompany one of the pieces.
But he at least hoped the magazine would get his name right on them.
Instead, one story went under the byline of an editor at the magazine, with Bundy getting second billing. The other was attributed to a completely different author and photographer, both of whom had nothing to do with the piece.
Now Bundy’s suing M Magazine, its owner Conley Media, and editor Janet Raasch in federal court for copyright infringement. In the lawsuit, filed last Friday, Bundy asserts through his lawyers that the byline screw-ups were “willful” on the part of the magazine and Raasch.
Of course, lawsuits are by their nature one-sided documents. My requests for comment from Raasch, one of three editors at M Magazine, and from M’s publisher, Phil Page, have so far drawn no response. Bundy also has declined to comment on his suit, citing the advice of his attorneys.
As journalism outlets increasingly rely on freelancers instead of staff, disputes like these have a risk of becoming more common – but even in that light, two experts in the field told me this week that the publisher’s alleged behavior in the M Magazine case represents an unusual extreme.
“Freelancing has always been difficult, but it's tougher today,” says Paul MacArthur, a professor at Utica College in New York and an officer with the National Writers Union, an organization for freelance writers. “Publishers are demanding more rights from freelancers while paying them less. Many freelancers get stiffed by publishers. Many publishers assume they have various rights to an article that were never actually licensed to them and exploit these rights without compensating the writer.”
This spring, Bundy pitched two stories to Raasch at M. One was a first-person piece about restoring the kitchen in his 1880s Queen Anne house in Milwaukee. The other was about a collection of antique pianos and their owner, who was interested in finding an appropriate museum to put the instruments on display. Raasch accepted both ideas, the lawsuit says, and sent Bundy the magazine’s standard contract. The agreement identified the two stories as “work for hire” – a term that gives publishers the greatest latitude in publishing a freelancer’s work and assigns them all rights to the material.
But also included in the contract was a provision in which the writer promises he or she will “not give, sell, transfer, disseminate, assign, resell or otherwise distribute the article or any portion thereof to any third party without the prior express written consent of Publisher.”
That was a problem, the lawsuit says. Bundy told Raasch he had already agreed to sell the piano collection story to an international classical keyboard magazine, Clavier Companion. And he had been asked by Kohler, the home plumbing manufacturer, to contribute an entry on his kitchen renovation to the company’s blog. For those reasons, the suit says, Bundy told Raasch he couldn’t agree to the agreement as it was written.
“Raasch agreed that Bundy could sell the article to magazines that did not compete locally with M Magazine and publish a similar story on Kohler’s blog,” the complaint says.
It asserts that Bundy never signed the contract. Regardless, he sent two versions of the kitchen story to the magazine, one about twice as long as the assigned word length of 200-225 words, and another that was longer. He also sent two versions of the piano story – one longer, one shorter – and both under a headline Bundy composed: “Articles of Faith.”
In late May, after Bundy had made “several inquiries … regarding suggested edits” to the kitchen remodeling story, the lawsuit says Raasch “suggested a ‘hybrid’ of both the short and long versions of the articles.” The suit adds that “Raasch did not provide any specific comments and told Bundy she would be in touch as she started editing the piece.”
The suit says he never received editing comments on either article. Responding to an emailed inquiry, Raasch told him on June 4 that the piano story “looks good” and was trimmed to fit the space allotted. She also confirmed that she would use four of Bundy’s photos for the story, and he sent her final copies of the photos that same day, the suit says. She had no comments on the kitchen renovation story.
At the end of June, when the July issue of the magazine went to subscribers and arrived at newsstands, Bundy opened up a copy.
Instead of seeing the stories with his name on them, the lawsuit says, the kitchen renovation story “was attributed to ‘Janet Raasch with Rob Bundy.’” There were two sidebars, and neither was bylined. “The entirety of the article and accompanying sidebars was taken from Bundy’s May 6, 2012 short and long versions of the story,” the lawsuit states. “The sidebars contained no author attribution, indicating to readers that both sidebars were also authored by Raasch and misrepresented the content and context of Bundy’s article.”
The kitchen renovation story was subsequently posted online at GMToday, the Conley Media website, where it was again attributed to “Janet Raasch with Rob Bundy,” the lawsuit says.
But the piano story was even more alarming: Its byline was listed as Martin Hintz, and the photos were attributed to Dan Bishop. “The entirety of the article was taken from Bundy’s May 13, 2012 draft,” the lawsuit says. (Bishop tells me he knows nothing about the incident or the lawsuit.)
Bundy contacted Raasch on June 29 to tell her the story “had been falsely attributed to the incorrect authors and requested that Raasch republish that article in M Magazine’s next issue with proper attribution to Bundy.” Raasch, the lawsuit says, blamed the error in credits on a “production mistake.”
Raasch gave Bundy a PDF of the piano story in mid-July with the attributions corrected, and in its August edition, the magazine published a correction.
The suit notes that after the stories were published, “Raasch continued to request that Bundy sign the Agreement. As of the filing of this Complaint, neither Bundy nor any of the Defendants have signed the Agreement.”
Perhaps surprisingly, a byline error “is not that uncommon,” notes MacArthur of the National Writers Union, responding in email to my questions. “It’s happened to me a few times over the years” – and it’s “exceptionally frustrating,” making it hard to use the work in a portfolio.
An editor may claim a writing credit, though it’s unusual. “Unless an editor has done a substantial amount of revision and added a substantial amount of new content not found in the original submission, it's inappropriate for an editor claim a writing credit,” he says. “Even then, it's not a commonly accepted practice.”
I also spoke with Alexandra Owens, executive director of the American Society of Journalists and Authors. She says Bundy’s case “appears to be a very egregious example” of conflict between a freelancer and a publisher. Byline mistakes happen, she notes, but they’re hardly ever fodder for lawsuits. “When we hear complaints, it’s much more likely to be about payment,” she says.
Both Owens and MacArthur stressed they weren't commenting on the merits of Bundy's case.
As redress, Bundy's complaint asks M Magazine to republish the two articles “with proper attribution to Bundy,” remove the kitchen renovation story from GMToday, impound all copies of M Magazine containing the original two stories, and pay him attorney fees and damages.
Rob Koebel: I learned about the sudden undoing of WTMJ-TV’s latest hotshot investigative reporter about the same time some other journalists did and was chasing some angles when it broke on Patch.com. Having seen nothing about it in the TV station’s corporate sibling, the Journal Sentinel, I began preparing a column examining how the media cover the misdeeds of their own. But the JS’s own Duane Dudek was way ahead of me with an excellent column in which Koebel came forward and spoke about the episode that got him arrested in August. And Dudek also pointed out a number of other problems in Koebel’s past that I had come across in my own research but not had the opportunity to report.
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