January 9, 2007

Ed Sunshine, Editor - Townobserver@aol.com
The Town Observer
8 Corrine Ter / P.O. Box 387
Bridgewater, MA 02324-3175 / Bridgewater, MA 02324

WritersWeekly.com has received a complaint about:
The Town Observer in Bridgewater, MA / Ed Sunshine

WritersWeekly.com is a publication that publishes information for and
about freelance writers. The publication is the largest-circulation
freelance writing ezine in the world.

As part of that information, WritersWeekly.com publishes a Warnings
section on its website and in its newsletter. This warning section
contains reports about publications that are unprofessional in dealing
with writers, have refused to pay writers money owed to them, who have
not abided by their contracts, or who have unfair contract terms. These
reports are used by WritersWeekly.com's subscribers to decide which
publications they should and should not work with.

Your firm has been submitted to us for inclusion in the
WritersWeekly.com Whispers and Warnings section.

Step one of our investigation of this report is to gather all relevant
correspondence between your publication and the person submitting the
complaint so that we can piece together that person's side of the story.
Step one of our investigation has been completed.

[ST] alleges you owe him $300 for unauthorized use of
his copyrighted work and that you refused the certified
letter he sent to you. He alleges the article was not only
published without permission, but that you removed his name
from the article as well.

He provided correspondence from you (see below) where you claim you
own all rights to articles. However, Mr. [ST] alleges
rights were discussed upon his hiring and that you only
own first rights to his articles. He also alleges you pay for
reprints, which would be a contradiction to your claim that
you own all rights after publishing an article once. There
is no contract granting you all rights to articles.

See complete allegation under my signature.

-----------------
WHAT HAPPENS NEXT
-----------------

The second step in our investigation is to send this communication to
your firm to get its side of the story. If you have evidence disputing
these allegations, or would like to make your own statement about
hese
allegations for publication in our report, please email
angela@writersweekly.com within two business days.

***All correspondence for our investigations must be in writing and is
subject to publication.***

If you do owe this person money, we strongly suggest you read
this article before responding:


http://www.writersweekly.com/the_latest ... 32006.html

Our report on your firm is scheduled for inclusion in our publication
next Wednesday.

If there is no response to these allegations, WritersWeekly.com will
still publish this complaint, but our readers will not be able to read
your side of the story.

We appreciate your prompt response in this matter.

Angela Hoy
Publisher
WritersWeekly.com

~~~~~~~~~~~~~~
THE COMPLAINT
~~~~~~~~~~~~~~

Date sent: Thu, 21 Dec 2006 18:18:37 -0500
From: [ST]
To: Angela Hoy
Subject: Local newspaper printing my articles without paying me!

Hi Angela,

I used to work at the Town Observer, a local newspaper in Bridgewater,
Massachusetts.

I would submit articles to be printed and the latest rates were thirty
dollars per article. I stopped working there in late June of 2006.
Last Saturday, December 16, I read the Observer and found one of my
old articles printed (without a byline also) and immediately sent an email
mentioning the article "Snow Business" was one of mine (it had been printed
before), in case he was not aware of the author, and that he should not print
any of my articles, as he did not have any rights to them, and that he owed
me compensation for printing it.

This first email was ignored, so I sent another today from a newly
created hotmail account, townobserver <at> hotmail.com, asking again
that he both stop printing my articles and that he owed me compensation for
the article that was printed.

His response was, "We purchased and paid for all of your stories in
full, once a story is printed it is the property of the Town
Observer."

I never had a written contract. No rights were ever transferred, and
I made it clear when hired that First Rights were what he got. He
prints the article, I get paid, all rights then revert back to me. (He had
always paid in full for reprints, which seemed to acknowledge the point.) I
explained Copyright Law and First Rights. (I had to do that when I
left in June as well; he does not seem to accept that the newspaper does not own
all rights to all stories.)

The editor refuses to discuss the matter.

He then refused a certified letter I sent him. I have the details
in a wordpad document if you would like.

Contact Info:

Ed Sunshine, Editor of The Town Observer
8 Corrine Ter
Bridgewater, MA 02324-3175

(that is his house, the business is run out of a P.O. Box)

The Town Observer
P.O. Box 387
Bridgewater, MA 02324
Townobserver@aol.com

Sincerely,
[ST]

~~~~~

Here are the emails discussing this topic:

***start emails

Hello [ST],

This was never discussed, we retain the right to reprint any property
that we have purchased.

thanks

Have a nice Holiday Season, this matter is now closed.

thanks

Ed
The Town Observer

~~~~~

-----Original Message-----
From: townobserver@hotmail.com
To: townobserver@aol.com
Sent: Thu, 21 Dec 2006 4:39 PM
Subject: Re: Snow Business printed 12/16/2006

Hi Ed,

We purchased and paid for all of your stories in full, once a story
is printed it is the property of the Town Observer. This has been our
policy for four years.

No you did not, you paid for first time rights, as has been discussed
earlier this year. As we did not have a written contract, and you
expressly agreed to First Rights when I accepted employment with you,
the only rights you had were First Time Rights. These First Time Rights allowed
you to print an article I submitted, once, then all the rights revert back to
me.

During my employment, you acknowledged First Rights several times,
including when you paid me in full for reprints.

If you check (online or with a Copyright lawyer) you will see you are
violating Copyright Law by printing my articles without permission.
You need to provide compensation for this article and to only print
articles to which you have the rights. You do not have any printing rights to my
articles.

Happy Holidays.

[ST]

~~~~~

Hello [ST],

Hope all is well.

We purchased and paid for all of your stories in full, once a story is
printed it is the property of the Town Observer. This has been our
policy for four years.

thanks and have a Happy Holiday Season.

Ed Sunshine
The Town Observer

~~~~~~

-----Original Message-----
From: [ST]
To: townobserver@aol.com
Sent: Thu, 21 Dec 2006 10:14 AM
Subject: Snow Business printed 12/16/2006

Ed,

Were you aware that Snow Business is one of my articles?

As there was no byline printed, I was not sure if you knew whose it
was, and I figured you would want to know.

I will expect a check this week, thank you, as you owe me compensation
for printing this article.

([ST]'s address removed for publication here.)

I must ask again that you do not publish any more of my articles, as
you do not have rights to do so. Thank you.

Happy Holidays to you and your family.

-[ST]

PUBLISHER RESPONDS FOUR MONTHS AFTER INITIAL EMAIL SENT BY WRITERSWEEKLY:

From: "Flexible Electroluminescent Lighting <info@beingseen.com>
To: Angela Hoy
Subject: Contact - The Town Observer
Date sent: Fri, 18 May 2007 10:07:59 -0400

Hello Angela,

Hope all is well and thank you in advance for taking the time to read
this email about a subject posted on your website. At the present time
you have a false post on your website in the forums. I would appreciate
if it could be removed.

Mr. [ST] worked for the Town Observer for 3 years on and off,
the reason I say off is because he often did not submit his stories on
time nor did he submit his stories regularly.

[ST] was paid on time, every time for his stories.

[ST] was directed to write stories about certain events in town and
seldom wrote on these events as asked, but we paid him in full for the
stories he wrote anyway.

My third an final point, he was only paid $30.00 per story to begin
with, so how is it that he is to be paid $300.00 for a story that he
claims 2 years later we are not allowed to reprint.

[ST] was not a freelance writer, he worked for The Town Observer, so
the stories belong to the newspaper since he was paid to write them
while in our employ.

I look forward to having this erroneous post on your forum removed at
your earliest convenience.
thanks for your time and consideration.

Edward M. Sunshine
The Town Observer
508 930 2277

WRITERSWEEKLY RESPONDS

From: Angela Hoy
To: "Flexible Electroluminescent Lighting <info@beingseen.com>
Subject: Re: Contact - The Town Observer
Date sent: Fri, 18 May 2007 11:55:42 -0400
Copies to: [ST]

Hi Edward,

Please send proof that [ST] was an "employee" of your firm, or
send a copy of the signed contract you had with him.

Angela Hoy
WritersWeekly.com

PUBLISHER RESPONDS

Angela,

He applied for a job, we agreed on a payment rate, we shook hands and
that's it. I believe in working with someone at their word.

The first issue with this claim on [ST]'s part is the sudden 1000%
increase in his pay per story. If his pay were $300.00 per story he
should be working for the New York Times not a town paper like the Town
Observer in a small town in Southeastern Massachusetts.

This claim by Scott is in error and until we are proven guilty of some
kind of infraction you should remove it from your website.

Thanks for your time and understanding,

Edward M. Sunshine


WRITER RESPONDS

From: [ST]
To: "Angela Hoy"
Subject: Re: [ST] - The Town Observer
Date sent: Fri, 18 May 2007 12:32:01 -0500

Hi Angela,

Here is my rebuttal to his 'facts'. :)

Mr. [ST] worked for the Town Observer for 3 years on and off,
the reason I say off is because he often did not submit his stories on
time nor did he submit his stories regularly.

I submitted my articles by whichever deadline he stated for that issue. The paper was then printed once every two weeks, and I was frequently told to submit my stories by Friday the week before the printing, or Monday the week of the printing and so on; it changed for no apparent reason.

Several times Ed did not receive my articles by his deadline, which resulted in rather abusive phone calls from Ed. One time he called and demanded to know where the articles were, as he received my email, but no articles were attached. After an hour, during which I received more general abuse about my 'excuses' regarding the emails, I determined it was his AOL account which was the problem, as it had the tendency to archive my emails, making them unreadable by Ed. He requested I send the articles to a different account, or send them one at a time. I agreed to this of course and there were no further problems. I never received an apology for his shockingly unprofessional behavior. Another time he called and yelled about not getting the articles, to which I responded the deadline was several days away. He simply stated he 'needed them now'. This type of behavior, unfortunately, was all too common.

[ST] was paid on time, every time for his stories.

Not true; frequently I had to send repeated emails for payment requests, all of which ended with me having to visit his office to pick up a check. He would comment on his wife driving to a writer with a check for one article, so the reason for making me visit the office after requesting payment for three weeks is still unclear. He wouldn't even send them by mail.

Several times I had submitted articles as requested, only to find they were not published in that issue. Older articles were reprinted, and I had to remind Ed several times that our verbal contract stipulated first-time rights and therefore reprints were to be treated the same as new articles and I was to be paid in full. Ed agreed and paid me in full for those reprinted articles. The unpublished articles were printed later, which just perpetuated the problem. Often I would submit the requested number of articles and only some would be printed (with no reprints printed that issue), meaning I was paid less that issue as fewer of my articles were printed.

The reprint he did not pay me for is the latest, which is the cause of this complaint. I invite everyone to read the entire history.

[ST] was directed to write stories about certain events in town and
seldom wrote on these events as asked, but we paid him in full for the
stories he wrote anyway.

I wrote articles about certain town events as requested, and my articles that were on general interest/humor were also very well received, as I was told by Ed that he received numerous emails complimenting my writing and to 'keep it up'.

My third an final point, he was only paid $30.00 per story to begin
with, so how is it that he is to be paid $300.00 for a story that he
claims 2 years later we are not allowed to reprint.

As you know, Angela, Ed does not seem to want to understand the concept of first-time rights, even though my emails have explained it and pointed out where one can learn more on the Internet. The fact that he used to follow our contract and chooses not to now speaks volumes.

The reprint, which was done without permission or byline, was a violation of copyright. He simply does not have the right to print any of my articles as they were printed once, following our verbal contract of first-rights.

The emails that explained first-time rights were not those last emails concerning payment (the history that you have). They were earlier emails, sent when I stopped working for the Observer back in the summer.

Reading the email history shows his character, which will explain much I am sure.

I wish to point out at this time that I sent an invoice to Mr. Sunshine via registered mail as you suggested. He refused it. The first request for payment was made the same week the article was printed. I do not know where he is getting the 2-year timeline.

[ST] was not a freelance writer, he worked for The Town Observer, so
the stories belong to the newspaper since he was paid to write them
while in our employ.

I received no benefits, no tax forms, nothing that would qualify me as employed by the Town Observer in anything other than a freelance capacity. There is no written contract. There is only the original verbal contract, which stated first-time rights.

If you need anything else, Angela, please let me know. Thanks again for all the wonderful work on my behalf, it is certainly appreciated.

Thanks,
[ST]

WRITERSWEEKLY RESPONDS TO PUBLISHER

From: Angela Hoy
To: "Flexible Electroluminescent Lighting <info@beingseen.com>
Subject: Re: Contact - The Town Observer
Date sent: Mon, 21 May 2007 18:09:29 -0400

I'm still waiting for proof that he was an employee. You don't have record
of any tax deductions from his paychecks? He worked at home, on his own
time. It is our determination that he was a contractor (a freelance writer), not
an employee. He accepted assignments from you. You didn't hire him for
a "job." Am I incorrect?

Angela

~~~~~

PUBLISHER RESPONDS

From: "Flexible Electroluminescent Lighting <info@beingseen.com>
To: Angela Hoy
Subject: Re: Contact - The Town Observer
Date sent: Wed, 23 May 2007 14:49:21 -0400

Yes, we did hire him for a job, he wrote for us on and off for over
three years.

[ST] had worked for us as an employee, and we paid him in full for the
stories, therefore they are ours.

We did not provide exact assignments, he was to write 3 to 4 stories
about the town of West Bridgewater every two weeks. We offer a
trustworthy relationship and let the writers choose the assignment and
then they ok it with me and we go forward.

This is not complicated, its very simple. [ST] made it complicated, he
wrote when he felt like it, he handed in his stories late on almost
every occasion and on 14 different occasions did not hand in a story at
all and did give any notice that he did have any stories to hand in.

Why do I have to justify this with you? the claim by [ST] is so
erroneous its comical and I don't understand why you can't see that.

Why would I owe someone $300.00 for the reprinting of a story from 12
months before that I only paid $30.00 for in the first place. Why would
I pay him anything for a story that I own and was written as an
assignment from us for The Town Observer. Where is [ST]'s "first
rights" contract that says he is a freelance writer for us and not an
employee.

I have not had this problem with any of the other 11 writers we have
employed for the past 5 years. We have only had one writer who worked
for us for less than 16 months. This is an isolated incident with a
very irresponsible person.

The stories were purchased from the writer for the sole purpose of being
printed in the Town Observer, therefore the stories belong to the Town
Observer.

Its very simple.

Please remove the post from you website, it is erroneous and meant as a
smear campaign.

thanks

Edward M. Sunshine
The Town Observer

~~~~~

WRITERSWEEKLY RESPONDS

From: Angela Hoy
To: "Flexible Electroluminescent Lighting <info@beingseen.com>
Subject: Re: Contact - The Town Observer
Date sent: Wed, 23 May 2007 15:08:35 -0400

Hi Edward,

Unless [ST] worked as your office, on your equipment, and on a
salary, with taxes withheld from his checks and paid to the IRS by
you, with you matching his Fica and Medicare contributions, he was not
an "employee."

If he was not an employee, and in the absence of a written contract,
you don't own the rights to his articles. He's a freelancer (a contractor) and
you are only entitled to first rights to his work.

When you published his article again without his permission, and when
you removed his name from it, you stole intellectual property that belonged
to him. Copyright theft is against federal law. You not only stole his material, but
you lessened the resale value of his work.

Asking $300 for the unauthorized use of his copyrighted material isn't
at all unreasonable.

You really should read up on copyright law and employment law because
you don't own all rights to your other freelance writers' work, either.

Unless you can prove [ST] was an "employee" at your firm, or unless
you can provide us with a contract or any other written or emailed
correspondence where he agreed to give up all copyrights to you, it
is our opinion that you did indeed violate his copyright by publishing
his article without permission and by removing his name from the piece.

Angela Hoy
WritersWeekly.com

~~~~~

PUBLISHER RESPONDS

From: "Flexible Electroluminescent Lighting <info@beingseen.com>
To: Angela Hoy
Subject: Re: Contact - The Town Observer
Date sent: Wed, 23 May 2007 16:19:13 -0400

Hello Angela,

Have you worked with [ST]? Have you dealt with his irresponsibility,
his no shows, his excuses?

Do you actually run a newspaper or do you just sit at your computer and
speak on your digital soapbox and make judgements all day?

Maybe I should contact the IRS about [ST] and his non-declaration of
taxes and social security.

I like the assumptions that you make, if he does not have an employee
contract with us then he is by default a freelance writer. This does
not wash.

Second, to be a contractor, he has to have a contract, he has none.
What does this make him if he is not a private contractor with a
contract and not an employee?

You don't need equipment to write a story, you need a little bit of
thought, a very observant character and a pencil on paper. That is all.

Third and final point, if [ST] did have a contract as an employee in
writing as you put it, he would have been fired after the first 6 to 8
stories. No direction, no listening skills, no responsibility.

The stories were bought from the writers as a product and paid for in
full. They belong to the Town Observer and we will print them as we see
fit.

If you knew [ST] and not just his idle ramblings by email, you would
see my point.

Why am I explaining this to someone who does not even list their phone
number in what they publish. I am not required to send you anything,
you are not the all-governing body of employed or freelance writers.

Edward M. Sunshine
The Town Observer
508 697-7300

WRITERSWEEKLY RESPONDS

From: Angela Hoy
To: "Flexible Electroluminescent Lighting <info@beingseen.com>
Subject: Re: Contact - The Town Observer
Date sent: Wed, 23 May 2007 16:21:1

Hi Edward,

You keep bringing up irrelevant accusations.

Your opinions about [ST]'s work ethic have nothing to do with the facts
in this situation.

The facts are:
1. He was not an employee
2. There was no written contract
3. You don't own the reprint rights to his articles
4. You violated federal copyright law

Just because you think he is "irresponsible" doesn't give you the
right to steal his intellectual property.

Angela Hoy
WritersWeekly.com

WRITERSWEEKLY READER WEIGHS IN:

Subject: Regarding The Town Observer
Date sent: Wed, 23 May 2007 13:55:10 -0600

Angela,

I agree with the writer -- I think that the fact that the publisher was paying him for reprints in the past demonstrates that the agreement, albeit verbal, WAS for only first time rights.

The publisher seems to think that just because the writer wrote for him regularly, that means he was an employee. Not so! If the publisher was paying him per story, the writer was a freelancer.

The publisher should pay up. I'm not so sure about the $300 amount, since I think the writer reached it out of anger and not based on the agreement he had formerly had with the publisher. However, I DO think that the writer deserves more than the original agreement dictated, since we are now talking about copyright infringement rather than reprint rights.

Sincerely,
Katharine

ANOTHER WRITERSWEEKLY READER COMMENTS

AMY SAYS:

Subject: Town Observer
Date sent: Wed, 23 May 2007 17:23:10 -0600

Angela,

The editor of the Town Observer has no grasp of the law. Furthermore, he keeps skirting the issue--bringing up items that are not part of the discussion. These diversionary tactics are the hallmark of deception.

The Town Observer doesn't own any of those stories if they weren't written under contracts that stated as such. The writer is entitled to ask for any settlement he wants, which is essentially what he is doing. I suppose going to court in this case isn't worth it, as the stakes are so small. That is why this forum is so important.

Now we can make our own decisions about this editor.

Contracts, people! Contracts!

DICK SAYS:

Subject: The newspaper in MA.
Date sent: Thu, 24 May 2007 10:08:41 -0400

Dear Angela;

I read with interest about the argument between Mr. ST and Ed Sunshine. Fifteen years ago I began writing a column for the newspaper where I worked in the display advertising department. Because I worked for the company there were two things in play. One: I was not going to get any additional pay and Two: I could not write for a "competitor." I retired a few months later and began to be paid for my columns and was then able to write the same column for two other in-state papers. I have no contract with any of them. But I get paid without protest from each of them. I have to make sure that I send an invoice to the paper that does not publish my column every week. Invoice sent. Payment received.

Bear in mind that the original paper is my former employer, though not as a writer. I had worked for them for seven post-retirement years. I did not have especially great relationships with the editorial department because there were always arguments about errors and deadlines about the ads I had sold.

Let's say I was more than glad to leave their official employ. Sometimes now, they cut my space in odd and unusual ways. I won't say anything about column headlines because sometimes they do reflect the subject matter. Nevertheless, I am paid on time for my work.

Anyway what I read of the Whispers and Warnings about Mr. Sunshine and Mr. ST is that they have issues going back to well before the reprinted article. I doubt if these two people have ever had a civil relationship. Nevertheless the paper was wrong and should pay and learn from the experience. Mr. ST should accept it and move on. I really don't know how he can continue to write while giving this so much importance.

There is nothing so useless as yesterday's paper even with my byline prominently displayed. Sorry for such a long letter.

Dick Learned

L.A., magazine editor SAYS:

Subject: Re: WritersWeekly.com: 05/23/07 - Authors Who Avoid Traditional Publishers
Date: Thu, 24 May 2007 11:57:36 -0600

Dear Angela,

Opinions and accusations about who was professional when and where
aside, the facts of this case show clearly that the publisher is in
violation of copyright law.

The creator of a work owns the rights to all "copies" (reprints, etc.)
unless the creator physically signed a "work for hire" contract,
stating that he or she gives all copyright to the person paying for the
work. The publisher keeps talking about how he paid for the article.
This is payment for printing it ONCE. It by no means gives him rights
to reprint it. There is no question whatsoever that he is in violation
of the law and that the person he calls an "employee" is actually a
freelancer.

To protect himself and be fair and professional with his writers, I'd
strongly urge that publisher to learn about copyright law. His
assumptions are not just incorrect; they have led to illegal practices.

As far as whether he owes $300, that's for him and the writer to decide
between themselves. He should certainly pay something. If the writer
were to take this to court, he would certainly win, but unfortunately,
unless he registered the article with the copyright office, he could
only sue for actual damages--likely not much money.

As a previous poster said, this is one reason contracts are essential.
I don't understand the concept of writing without them. The
publisher's current writers should insist on signing a contract or look
into registering their articles with the copyright office. If the
publisher reprints a work without permission that has, in fact, been
registered, he'll be in for a rude awakening.

Sincerely,

L.A., magazine editor

ANOTHER READ SAYS:

Subject: Comment on Ed Sunshine
Date sent: Thu, 24 May 2007 15:59:26 -0400 (EDT)

No matter how rinky-dink a publication, if it's being distributed outside
the bottom of one's parakeet's cage, then its publisher is in what is
known as the publishing business.

Mr. Ed Sunshine, publisher of the Town Observer, can not reasonably expect
us to swallow that he makes agreements with writers he hires on a
handshake and that the handshake is the exact equivalent of a
work-for-hire contract.

Mr. Sunshine: Tell it to the horse marines!

Does the man want to be known as a publisher of integrity or not?

If so, he should admit that he has been abusing writers by hiring them on
a handshake and then using their work as though he owned it under a
work-for-hire contract, though he had no such contracts with his writers.
He should apologize for that. It appears he bullied this writer, who
complained of his abuses, though the law, the
contract law, is not on his side. He should apologize for that too.

Then he should state his intention to offer standard contracts to
freelancers, which by the way could even be issued and considered legal by
means of e-mailings, so that the cards are on the table for all to see.

If he wanted, he could offer freelancers work-for-hire contracts. Were
they to accept them, they would be idiots, but that's another matter.

This complaint to WritersWeekly actually gave Mr. Sunshine a chance to
demonstrate to the world his intentions to run his business in a more
business-like manner from now on. Instead of grasping that opportunity
and working it to his advantage, Mr. Sunshine has made clear what kind of
business owner he is. He could yet redeem himself in this forum, but I
have a feeling that if you hold your breath waiting for him to do that,
then you might as well accept one of those Sunshine handshake
specials, which for some reason have never traded at a high-end
price-point on E-Bay.

MEG SAYS:

I just had to respond to this ridiculous threat from Mr. Sunshine
of the /Town Observer/ in Bridgewater, MA:

"Maybe I should contact the IRS about [ST] and his non-declaration of
taxes and social security. "

Mr. Sunshine couldn't have made his absolute ignorance of the law any
clearer if he'd been trying than he did with that single statement.

Mr Sunshine: Freelancers report and pay their taxes and social
security on their own; employees do not. If [ST] was at one time your
employee, as you claim, it was YOUR responsibility to withhold taxes
and social security from his paycheck. If you didn't do that, either
(a) he was not your employee and was in fact an independent
contractor, or (b) if he was your employee, YOU can be reported to
the IRS for breaking the law.

Thanks, as always, for all you do, Angela.
Cheers,
Meg