The grey area of freelancers reusing their own work

By Jeff Fraser

By Jeff Fraser

Though the scandal over Jonah Lehrer's self-plagiarism at the New Yorker has subsided, with Lehrer apologizing and New Yorker editor David Remnick telling the Wall Street Journal that he will be staying on, the media controversy highlighted growing pressure on independent writers to meet the demands of a content-hungry online media industry. Freelancers today are being paid less to write more, and the temptation to cut corners is greater than ever. 

On June 19, Jim Romenesko was tipped by a reader that the opening paragraphs of Lehrer's blog post at the New Yorker were nearly identical to part of an article he had freelanced to the Wall Street Journal a year earlier. The revelation prompted an investigation by concerned readers and journalists, who, using Google and other search tools, tallied 13 instances of significant verbatim duplication in Lehrer's large body of work. The scandal ignited a wide-ranging media debate over whether Lehrer's actions constituted plagiarism, who the injured parties were, and what the consequences should be. 

Jonathan Bailey, editor of the writing ethics website Plagiarism Today, says the damage done by self-plagiarism hinges on an audience's expectations. Unlike traditional plagiarism, where the complainant is the creator whose work is stolen, the primary victims of self-plagiarism are the publishers and readers who are deceived into thinking they’re getting original work. In some venues, like legal writing, business presentations or essay anthologies, self-plagiarism is expected, and so no deception is involved. In other circles, like academic publishing, duplicating one's own work or submitting similar work to multiple publications is considered dishonest and can lead to severe reprimands.

Bailey says that expectations surrounding originality, self-reference and attribution in the media can be difficult to settle, because "publications and supervisors don't talk about this. They usually have a pretty robust policy on plagiarism, but self-plagiarism is kind of the elephant in the room.

"There needs to be a serious discussion on this at that editor-employee level, where everyone understands what's expected of them in terms of originality in their own work," he says. "You will not find a robust, clear, practical guide on self-plagiarism."  

It doesn't help that the lines around duplication of others' work are often blurry for journalists, he says – some news organizations regularly lift quotations, copy, and entire articles from wire services without attributing them, which in other contexts would be considered plagiarism. Working with this model on a regular basis can skew a journalist's perception of what needs to be attributed.

Reuters media blogger Jack Shafer was one of those involved in a live chat about Lehrer's self-plagiarism hosted by the Poynter Institute. He has been on both sides of the editor-freelancer relationship, having contributed to The New York Times Magazine and the New Republic and edited for Slate, the Washington City Paper and SF Weekly. He says freelancers often repurpose their work for multiple publications by rewriting leads and reusing research and interviews, and he sees no inherent problem with the practice, as long as everyone knows about it. "You can resell an entire review or an entire piece if the rights belong to you," he says.

Lehrer's actions, by contrast, violated an understanding with his readers, the New Yorker's editors, and potentially his contract. "Presumably, they're not hiring him as reprint service for his own work," Shafer says. "No matter how good your work is, if you alerted me to the fact that you're now going to reprint three paragraphs from something that you wrote four years ago, I doubt if I would stay to hear what you have to say. Because what I want in your journalism is something that's reflective of the now." 

Michael OReilly, president of the Canadian Freelance Union (a local of the Communication, Energy and Paperworkers Union), says that the key to acceptable reuse is to avoid conflicts of interest by choosing the right outlets for original and repurposed work. "You would never sell or license the same article to two publications that were in the same market at the same time — that would just be bad business on your part. You would very quickly become persona non grata."

But the Internet has made it more difficult to find publications that aren't effectively competing with one another. Ten to fifteen years ago, OReilly says, "I would license a piece to the Ottawa Citizen and the same or similar piece to the Vancouver Province, for example." Now, thanks to digital publishing, "virtually every market has a global reach. Most freelancers are wise enough and ethical enough not to sell into competing markets, but now every market is competing." 

That difficulty is compounded by the emergence in the 1990s of "rights-grabbing" freelance contracts, which require independent writers to sign over all print and digital rights to publishers. Unlike pre-1990s verbal freelance agreements, the new standardized contracts make it next to impossible to reprint or rework a published article. The rights-owning parent company, meanwhile, is free to reprint the work without compensating the writer. It's not uncommon for a freelance article accepted by a newspaper to be syndicated to other organizations in the same chain without the writer's permission or royalties, OReilly says.  

Freelance pay rates, meanwhile, have remained stagnant since the '70s. A 2006 study by the Professional Writers Association of Canada (PWAC) found that freelance writers' average before-tax income was roughly $24,000 per year. A study by labour researcher Nicole Cohen found that 45 per cent of surveyed freelancers brought in less than $20,000 in 2009, while Statistics Canada found that 11 per cent of Canadian writers reported no income from writing in 2005.

"If you're underpaid — which a lot of writers feel they are — you do copious research for something, and it's a subject of ongoing interest, why shouldn't you be able to use that research again?" says Sandy Crawley, executive director of PWAC. "It's a bit of a grey area, isn't it?"

Publishers are not wrong to want original work, he says, but they have to be clear about what their expectations are. He says there is currently no will to negotiate minimum standards with freelancers that would clarify fair wages, copyright agreements, and issues surrounding originality and reuse.

OReilly at CFU is less generous to publishers, who he believes have been whittling away at writers' livelihoods for decades. "The answer is to pay us — not even well, but what we were getting paid 30 years ago. Then freelancers could probably afford to spend the time rewriting and reworking everything," he says. "The answer is always, 'If you want something, then pay for it.'"