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What You Need to Know about Copyright Law

Written by David R. Ellis, Attorney at Law, Largo, Florida

Why do writers need to know about copyright law? If you or have ever created, adapted or used others' expressive materials, including writings, photographs, graphics, computer programs, compilations, or other material, you need a basic understanding of copyright law.

In the United States, copyright law is a statutory scheme of intellectual property protection dating back over 200 years to the Constitution.  Although Franklin, Madison and Hamilton never used laptop computers or the Internet, they nevertheless established a scheme of protection that applies today by giving Congress the right to grant authors and inventors exclusive rights in their writings and discoveries for limited periods of time.

Congress enacted the first Copyright Act in 1790 and the current act in 1976. Under the law the author of a copyrighted work has the exclusive right to reproduce, distribute, and publicly display and perform his or her work and any derivative versions, and to authorize others to do so during the term of the copyright.

The author of a copyrighted work has the right to prevent others from using the work without permission and to bring suit against violators who infringe the copyright. Copyright protects "original works of authorship fixed in any tangible medium of expression." These include a wide range of expressive works such as literary works like books, articles, short stories, poems, and computer programs; works of the performing arts such as musical and dramatic works, pantomimes and choreography, and motion pictures and audiovisual works; pictorial, graphic, sculptural, and architectural works; sound recordings; and original compilations of facts and information, such as commercial databases of court decisions and records.  It is important to understand that copyright does not protect underlying facts, ideas, procedures, processes, concepts, principles or discoveries, but only the particular way underlying information is expressed in an original way.

The Fair Use Doctrine

Although the copyright owner is granted a bundle of exclusive rights, under certain conditions a person may be able to make "fair use" of all or part of a copyrighted work. Under the fair use doctrine, if the use is for a purpose deemed beneficial to society such as criticism, comment, news reporting, teaching, scholarship or research, the use may be allowed despite the copyright owner's exclusive rights.

In determining whether a particular use is a fair use, the law states that certain factors should be considered, including the purpose of the use, such as whether it is for commercial or nonprofit educational purposes; the nature of the work; how much of the work is used and how substantial that portion is in relation to the entire work, both quantitatively and qualitatively; and the effect of the use upon the potential market or value of the work.

Ownership and Work for Hire

The owner of a copyright is its author, who may be an individual or multiple persons. If the authors consist of two or more persons, then the work is considered a joint work. A joint work is defined in the Copyright Act as a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole. Thus Lennon and McCartney's Beatles songs are joint works. On the other hand, the musical "Cats" is not a joint work since it uses T.S. Eliot's preexisting poems for its lyrics combined with the much later composed music of Andrew Lloyd Webber. There was no original intention on the part of Eliot to merge his contribution with Webber's, so the work is not a joint work.

Another important concept regarding copyright ownership is the work for hire doctrine. Under the Copyright Act, a "work made for hire" can arise in one of two ways. One is a work prepared by an employee within the scope of his or her employment. Thus, a person working for a magazine as a staff writer or photographer or a computer programmer has "sold his soul to the company store" in the sense that the copyright in his or her writings, photos, or programs automatically belong to the company as a work for hire, without the necessity of a written agreement or other document.

The second type of work for hire is a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in writing that the work will be considered a work for hire. A work can be a work for hire under this second prong only if the creator of the work agrees in writing. Thus, an independent writer, photographer, or programmer hired by a magazine on a freelance basis would own the copyright in his or her contribution rather than the publisher unless the author signed a document expressly agreeing that the contribution would be deemed a work for hire.

Term of Copyright

The term of a copyright depends on a number of factors, including when it was created or published. For works created after January 1, 1978, the term is the life of the author plus 70 years. For works made for hire, and anonymous and pseudonymous works, the term is 120 years from creation or 95 years from first publication, whichever comes first.

For works created prior to 1978 whose terms have not yet expired, the term is 95 years from first publication. Works published before 1923 are in the public domain and can be used freely because, prior to 1998, the term of copyright for pre-1978 works was 75 years. The term of any work published in 1922 or before that thus expired by the end of 1997.

Works published after 1923 may still be covered by copyright. That's partly because of the Sonny Bono Copyright Term Extension Act of 1998, which extended the term of copyright by twenty years. Although the law was named after the late Congressman/singer who was killed in a skiing accident shortly before the law was passed, the law might better have been named for Walt Disney. The Disney Company was a strong advocate of the law to extend the copyright term because otherwise Walt's cartoon characters, Mickey Mouse, Pluto, Goofy, and Donald Duck, would have expired this decade, along with a host of other works created in the 1920s and 1930s such as "Happy Birthday."

"Happy Birthday" was composed in 1893 (as "Good Morning to You"), but not published until 1935, and its term now runs through 2030.  The song earns about a million dollars a year in royalties and the current owners bought it about a decade ago for $12 million based on the value of its expected royalties at the time. When the term was extended, they obtained an additional twenty years of royalties, so it turns out that they really bought it for a song!

Copyright Registration and Enforcement

Before a copyright can be enforced in federal court, the owner must register the work with the U.S. Copyright Office in Washington, D.C. This can be done by completing an application and depositing a copy or copies of the work with the Copyright Office. Registration is not a prerequisite for copyright protection but a U.S. copyright owner cannot sue to enforce his or her rights without first obtaining a registration certificate. Similarly, the copyright owner does not have to mark copies of the work with a copyright notice, but it is advisable to do so. The statutory copyright notice consists of the word "Copyright" the abbreviation "Copr.", or the symbol ©, and the date and the author's name, e.g. © 2007 Ima Writer.

Once a case of copyright infringement is brought and proven, the court may issue an injunction prohibiting further infringement, order the seizure and destruction of infringing items and the means to make them, and award damages to the copyright owner based on the author's lost profits or the infringer's ill-gotten gains. If registration has been made prior to the infringement (or within three months after first publication of the work), the owner may ask the court to award statutory damages ranging from $750 to $30,000 for each work infringed, plus attorney's fees. In the event of willful infringement, statutory damages can be increased to $150,000 for each work infringed, and under certain circumstances, criminal penalties can be imposed.

Conclusion

Copyright law is of importance to writers and other creators of expressive works because of the protections it affords authors and the restrictions it places on their use of the material of others. Each of us encounters copyrights every day in the works we create, the publications we read, the music we listen to, the films, television programs and other media we view, and the technology we use. Consequently, writers should take the time to learn about and become familiar with the basic concepts of copyright law.

Copyright © 2007 David R. Ellis. All rights reserved

David Ellis is a Largo attorney practicing copyrights, trademarks, patents, trade secrets, and intellectual property law; computer and cyberspace law; business, entertainment and arts law; and franchise, licensing and contract law. A graduate of M.I.T. and Harvard Law School, he is a registered patent attorney and the author of the book, A Computer Law Primer. He has taught Intellectual Property and Computer Law as an Adjunct Professor at the Law Schools of the University of Florida and Stetson University.

 

Good Work Deserves Good Pay

A newsletter publisher recently contacted me after his Writers-Editors.com search for freelancers. We were rolling along in agreement until I mentioned my hourly rate of $50, scheduled to increase soon thereafter to $65. He declined my services, saying they were "way out of sync with what I pay and have paid freelance writers."

Sensing an opportunity to explore the Great Divide between what publishers and editors expect in a freelance writer – exceptional talent and skills, lots of (often undefined) experience and ridiculously cheap wages – and what is offered – exceptional talent and skills, lots of (relevant and nuanced) experience and a living wage – I asked if he would be willing to be interviewed about the publisher/freelancer relationship. What follows is the verbatim email exchange, errors and all. I've added my thoughts about his replies [in brackets].

1) What prompts you to seek additional freelance writers if you have established relationships with other freelancers?

I seek freelance writers when:

    a) We have launched a new publication that goes beyond the scope of what our existing freelance writers are able to provide;

    b) An existing freelance writer is unable to contribute the quantity of articles needed;

    c) The "fit" between the freelancer and our company doesn't appear to be working – could be quality of work, the writer's available time, etc.

[I wonder if the writer is given a chance to adjust to the quantity issue. I also wonder if the lack of "fit" is discussed before the writer is dismissed.]

2) When you post a request for a freelance writer, what aspects of the replies to your request command your attention? Is it the speed of response, the clips, the writing style of the responsive letter, the resume, or something else?

This was actually the first time I posted requests on freelance websites. In the past I have advertised (which can become quite expensive). I selected candidates based on the information they placed on their ads – the more the better in most instances; how well they worded their introductions – when it began "I was born ..." I knew I wasn't interested, but when they put some thought into their intros ("I can make your copy sing."), it tended to grab my attention more; if some of their past experience was related to the subject of our publications; and, of course, the speed with which they responded back to me.

[I would no more write "I can make your copy sing" than I would write "It was a dark and stormy night," so this mismatch was inevitable. And I've suspected for some time that it's not talent that wins an assignment but speed of response, which says little for either side of the desk.]

3) What do you think the average, full-time freelance writer's salary is? Have you ever discussed or studied publishing finances from a freelance writer's point of view? If you have, how has this informed your hiring practices and/or working relationships?

I honestly have no idea of a freelancer's full-time salary. Our company has paid by the hour and by the article in the past. We also have one relationship in which the writer is compensated with a monthly fee based on producing so many articles per month. I tend to favor an hourly rate because I think it tends to be fairer to both parties.

[I knew he had no idea about payment when he praised my expertise, experience and awards to the skies and then was shocked at what is, by any standard, a modest hourly rate for a veteran, award-winning writer. His top rate is $15/hour, a mere $30,000 year gross, which, by WEN standards, amounts to $15,000/year net. Now I want to know what other editors and publishers understand about what it takes to support a family on a freelance salary. I hope readers will ask this question when the opportunity arises and share the information with other freelancers.]

4) Do you discuss working with freelancers with other editors/publishers? In what setting? Is this information shared with the freelance community?

I do belong to NEPA (Newsletter and Electronic Publishers Association) and make a point to attend their major conference on an annual basis. I know many companies' in-house editors attend this conference, but I'm not aware of freelancers participating.

[This seems like a tailor-made opportunity for someone to make a presentation about the realities of freelance life from our side of the checkbook. Any takers?]

5) If you could change something about the editor/publisher/freelance writer relationship, what would it be?

I think it might be helpful if freelance websites could do a better job of classifying freelance writers into categories based on their areas of expertise. I know this already exists to some degree, but if it could be honed even more, it might result in a better, more long-term fit for both the writer and the publisher. For example, there might be a category called "Nonprofits" with subcategories of fundraising, board management, marketing, PR/communications, etc.

The publisher's last comment was: I'm proud to say I have one freelance writer who has had a 10-plus year association with my company – our professional relationship has grown and been mutually beneficial over time.

[I expect this writer has traded better market prices for random articles for a regular paycheck, and there is nothing wrong with that. But when we all insist on a decent hourly rate on initial jobs and pass on clients who chronically underpay freelancers, we all benefit.]

My exchanges with this publisher were friendly and polite. I asked about submitting articles on spec (items I knew I could resell that would make his $15/hour profitable to me). He was amenable, so the door there is still open. It always pays to be nice, not outraged, and I'm delighted he was kind enough to share his thoughts. I hope others have garnered or will seek out this same kind of "their point of view" information and share it. I also hope we, as freelancers, will seize opportunities to explain the realities of our financial lives to publishers and editors.

Written by Andi Reynolds, Keota, Iowa.


What Should I Charge For (Project X)?

by Peter Bowerman, author of The Well-Fed Writer: Financial Self-Sufficiency as a Freelance Writer in Six Months or Less, and the companion volume, The Well-Fed Writer: Back For Seconds

It's a question I've been asked by writers many times: "I need to quote a price to write a marketing brochure of six pages. What should I charge?"

Without more information, there's no way I could begin to quote a number. There are so many questions that need to be answered first, such as:

    • How many meetings?
    • Any background reading? How much?
    • Any research necessary? How much?
    • Any interviews of SMEs (subject matter experts)? How many?
    • How much copy on each page? (In other words, do they have a proposed graphic layout yet, so you know how much space you have to "write to"?)

Other than the suggestions below, estimating is an art I can't really teach you. But do it enough and you'll develop a sixth sense about it. Bottom line, there's no set amount for a marketing brochure, newsletter, ad, website, etc. With the project details just one Q&A session away, you're in an infinitely better position to estimate it than I could ever be.

As far as the actual mechanics of coming up with a reasonably accurate estimate, it's all about time. Break the project down into its component parts and estimate what each piece would entail, time-wise. And that means meetings, travel, research, background reading, interviews, concepting (brainstorming), copywriting and editing (though you won't have all these parts on all projects). Add up the hours, multiply it by your hourly rate and offer a project fee range (with a 10 to 15 percent spread).

As for what that hourly rate should be, do your homework, find out what the local market will bear for your type of writing and your level of experience (contact other writers or ad agencies/design firms for the local rate scoop).

And over time, you'll get a sense of what a competitive rate for, say, a brochure, direct mail campaign, ad or newsletter (of X# of pages) might be in a particular market. That can be very valuable information. Say you're estimating an 8-page brochure project. If, for the sake of argument, you know you work fast and think it'll take you 20 hours to do it and your hourly rate is $75, you'd come up with $1500 estimate. If however, you know that a $2000-$2500 fee is competitive for your market, you can effectively boost your hourly rate by offering up that rate. Of course, if that keeps happening, maybe it's because it's time to raise your rates.

Peter Bowerman, a commercial freelancer and business coach based in Atlanta, is the author of The Well-Fed Writer: Financial Self-Sufficiency as a Freelance Writer in Six Months or Less (Fanove, 2000), a how-to "standard" in the field of commercial writing, as well as a companion volume, The Well-Fed Writer: Back For Seconds (Fanove, 2004). Check them out at www.wellfedwriter.com.


To (Almost) Guarantee  Payment

  • Work only for clients or publishers who have been referred by, or who can provide references of, other freelancers (writers, photographers, artists) who will vouch for their payment timeliness.
     
  • Obtain partial payment up front. On medium-sized projects, some writers require half to start, the balance on completion. On large projects, they ask for one-third to start, one-third at the halfway point or upon approval of the rough draft, and the final third upon completion.
     
  • Submit invoice along with completed manuscript or project. Find out in the beginning to whom invoice should be addressed, and what purchase order number, job number, or other identifying key should be included.

Preventing Potential Problems

When recording checks received for published material, list the name of the company issuing the check and the name of the publication or publisher. In this age of mergers, it's often difficult to know who's who or where the "bookkeeper" actually works.  Also enter the amount of the check, the date the check was issued and the check number.  All that data may be important if you have correspondence with the publisher about your check.
From Write Where You Live: Successful Freelancing at Home by Elaine Fantle Shimberg.

To speed up payment: Heed two business "rules of thumb":

  1. Businesses pay other businesses before they pay individuals.
     
  2. Accounting departments recognize invoices as documents requiring processing; they do not act swiftly on letters.

Take advantage of these "rules" by submitting an invoice along with your manuscript. Make your invoice look like it's from a business by giving yourself a business name (Smith Editorial Services). You can instruct accounting to make the check payable to Your Name, or you can file a DBA under the business name and have payment made to the business name. In most areas, this is not necessary. Check it out with your bank, your tax person, your attorney. Look in accounting and starting-a-small-business books for examples of what an invoice should look like and what one should include.

Also: Use a numbering system for your invoices. Most bookkeepers use invoice numbers to track payments and differentiate between old bills and recent ones from the same vendor (meaning, writer). And if you have to follow up on a late payment, use the same invoice number and same date of your original invoice; if you change either to today's number or date, your invoice will likely go to the bottom of the pile.

Pricing: Promoting your editorial services is but one component of your annual business plan. Another important consideration is a serious look at your pricing:

  • Have you gained greater knowledge of your field during the past year, through either training/education or experience?
     
  • If so, where does that now position you with others providing the same services or writing for the same publications?
     
  • Are the fees you charge or receive reflective of that new positioning? If not, better raise them.
     
  • If you're concerned about losing too many clients by raising your rates, you can also have a flexible fee schedule — one bracket for current clients/publications and a higher bracket for new ones.
     
  • If you determine your current rates are way below what you should be receiving, try raising them incrementally; for example, 10 percent quarterly, rather than a big jump all at once, which could scare too many current clients away.
     
  • Project how many clients or publications you might lose if you raise your rates to the level you plan. Then figure out if you'll be better off. Example: Say you currently realize $40,000 income from 20 clients/editors. If you raise your rates 10 percent, you expect you will lose two of the editors. If nothing else changes, you can expect to now earn $39,600 from 18 clients — almost the same for less work.
     
  • If your new projections show a big drop in income from current clients because of your increased rates, can you visualize using the extra time (from fewer assignments) to market for replacement clients/editors who will pay your new rates?

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Business Strategy Tips

Even if you do all or most of your work on a project-fee basis, keep time sheets and track how many hours each job takes. Then divide by your fee to calculate your earnings on a dollars-per-hour basis. A pattern will begin to emerge. You will find that some assignments you thought were paying well actually didn´t when figured on a per-hour basis, and that some assignments with smaller fees are actually quite profitable.
From Write More, Sell More by Robert Bly

To maintain a steady cash flow in your writing business, diversify the types of specialties you develop and market so you include each of the following in your activities:

  • one-time, quick turnaround income (e.g., resumes, sales letters, brochures, articles for current quick-pay editors)
     
  • long-term income (e.g., grant writing, books, technical manuals)
     
  • regular (monthly or quarterly) income (e.g., columns, newsletters)
    From Writer's Digest Handbook of Making Money Freelance Writing

Plan to add at least one new revenue stream every six months. For example, if you usually write articles about business, investigate the feasibility of ghostwriting articles, speeches and books for business executives. Or, if you usually edit newsletters for healthcare clients, consider adding the investment field to your newsletter client list; or, add freelance health articles to your schedule. Continually developing and adding new services or client-fields to your basic business is the best way to keep your business from being affected by your market's ups and downs.

Want to increase your writing income?

  1. Each time you sell an article, follow up quickly with a query for another piece.
     
  2. After you´ve written four articles for an editor, ask for a raise of 15 percent (minimum) to 25 percent for future work. Editors continually look for writers they can depend on regularly; if you´ve proven you are one, remind the editor of your value.

When developing your business plan for the next year,

  • decide which field (e.g., health, travel, golf, business, Internet) you enjoy writing about the most, then make plans to produce regularly in it so you can become known as an expert or even to "dominate" it.
     
  • identify high-potential profit centers for concentration and leveraging (for example, leveraging articles to books to speaking; or leveraging Website design/editing to consulting).
     
  • abandon or cut back in fields that may be drying up or are attracting too much competition or showing too little profitability per time involved.

A primary profit center (articles, books, ghostwriting, ad copy, proofreading, newsletters, a particular subject area like travel or health) is one that makes up a relatively large percentage of your total writing revenue. Work toward having several primary profit centers with varying "peak" periods during the year, so as to have a relatively stable assignment load.

Problem: You've been offered an assignment that will pay you $1,000, which is on the low side for this type of work, but it is in a writing field new to you.  Should you take it on?

Solution: Bottom-line questions you need to answer:

  1. Do you really want to get into this field? If not, and you can expect to earn $1,000 from your usual writing contacts with less time involvement, decline the offer. If you really do want to get into this field of writing, this may be your entry opportunity.
     
  2. Does the project offer other income possibilities? You'll want to read any contract offered carefully to be sure you would not be restricted from writing on the topics covered or for other clients/publishers. If your basic research material could be rewritten and remarketed, proceed only if you are interested in doing so; if it fits into your general business plan.
     
  3. Is the project interesting enough to you to put in the time for what may not be a whole lot of money? Once in awhile, writers will put in pro bono time, or close to it, simply because it involves a topic, an issue, or a cause that is important to them. That's OK if you are honest with yourself and with your client/editor, that this is below your usual fee, it is not part of your routine work schedule or business plan, and that you are doing it for a personal reason.

Set policies for your writing/editing business. Know what you will do, what services you will offer, and what you will not. Then have a fee schedule for what you will do (for example, $xxx for ghostwriting an article, or $xxx for producing a Web page up to a certain size, or $xx to $xx per page for editing a manuscript. When a client asks you to do an extra service, something on your "I do not do this" list (it may be proofreading, story placement, news release distribution, or whatever), simply explain that while you do have a fee schedule for your specialties, you charge an hourly rate of $xx for other services, such as .....
(Based on advice by Bob Bly, www.bly.com)

When working out your Writing Business Plan, consider how you can increase productivity throughout your business:

  • Multiple sales (selling reprint rights; using your research in another article or column or book),
     
  • Turning collections of your published articles or columns into books,
     
  • Farming out secretarial work, such as extensive typing (or keyboarding), tape transcribing, envelope stuffing,
     
  • Dictating rough drafts into a tape recorder or speech recognition software.

Classify your clients or markets according to their value to your editorial business:

  • Key clients/markets currently provide you with regular and substantial revenue and approach you with assignments. They may even refer other clients or editors to you.
     
  • Bread-and-butter clients/markets provide less but still reasonable revenue and are generally easy to work with and for. They rarely come to you with assignments; you invariably have to approach them first, but they usually like your ideas.
     
  • Marginal clients/markets either pay low fees or make you wait long periods for payment, and may even require following up for payment. They may give you a hard time, either over your fees or over what they want in the material.
     
  • Problem clients/markets make you wish you'd never heard of them. They put you through numerous re-writes because they haven't decided what they want. They may even ask you to compromise your standards or ethics.

To jump-start your business (and lower your stress level):

  • Drop all Problem clients and markets immediately.  Do not take any further assignments from them and do not query or contact them again.
     
  • Begin replacing your Marginal clients/markets with new ones.  Each time you line up a new client or a new market, drop a marginal one.
     
  • Begin educating your Bread-and-Butter clients/markets about how much money your professionalism and accuracy and dependability are really worth, and about how a series of assignments can help you help them.  Try to improve one or two to Key status.
     
  • Pay extra attention to your Key clients/markets.


Traps: Getting into a new field of writing can be stimulating and energizing. But if we're not careful, we can fall into either of two traps:

  1. Expending so much energy and time (and sometimes money) learning new things, that we never bother to capitalize on what we already know how to do, and which therefore takes less energy and time to accomplish and to build an "expert" reputation in.
     
  2. Not stopping to analyze which field or fields of writing have been or are likely to be worth our time pursuing, and which need to be emphasized for maximum profits.
     

Increase income

If you know that you average $450 per article sale, and you average 10 queries in order to get that sale, you can increase your income three different ways:

  1. You can send out more queries (which means more work),
     
  2. You can send to higher-paying markets in order to increase your income-per-sale (which requires more market study),
     
  3. You can improve the quality of your queries (which means more how-to-query-and-select-markets study).

Go back over the past six months (or 12 months if possible) and total the number of queries you have sent out. Also total the number of go-aheads you have received from those queries. Also total the number of articles you have sold from those go-aheads. Also total the amount of money you earned from those sales. Let´s say you sent out 100 queries, received 10 go-aheads, sold 8 articles and earned $2,000. That means that for every 10 queries you send out, you get 1 go-ahead and earn $200 (on average). So you are technically earning $20 per query. Let´s say you want to now earn $400 a week from your writing — based on your current averages, you need to send out 20 queries per week to do so.

 

Taxes

Don't miss these tax deductions:

  • call waiting, call forwarding or other services added to a home phone line because of the business
     
  • any business expenses put on a credit card by December 31 even though payment isn't made until the following year
     
  • mileage costs for errands such as picking up office supplies and going to the post office
     
  • up to $25 per person per year in gifts given to clients or editors or other customers
     
  • dues to professional organizations (such as WEN/FFWA),
    magazines and books that you need for your business
     
  • online fees, based on the percentage you go online for business.

    from Minding Her Own Business: The Self-Employed Woman's Guide to Taxes and Recordkeeping - 4th Edition by Jan Zobel, EA

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Who Uses Ghostwriters? Politicians, teachers, physicians, and people from all walks of life hire ghostwriters. They may be very competent at writing, but  don't have the time to research or write a piece. In other cases, they are not competent writers and want to hire you to translate their thoughts into something coherent and interesting. Many books by famous personalities are actually written by ghostwriters for hefty fees. Ghostwriters are also used by trade magazines, professional newsletters, and other publications.

How do you find clients? Some people advertise for ghostwriters in writers' publications. More frequently, ghostwriters find their clients through networking. Get the word out that you can and will do ghostwriting. Tell editors, publishers, and colleagues in the field.

Source: Writing Freelance by Christine Adamec (Intl Self Counsel Press)

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