Commentary

Condé Nast Takes On 'Gourmet' Writer For Posting Articles He Wrote

Last November, when freelance food journalist Barry Estabrook learned that Condé Nast was shuttering Gourmet, he worried for the fate of features he had authored for the magazine.

"There were half a dozen articles that -- if you want to know the truth -- I was proud of them," he says. "I didn't want them just to vanish."

So Estabrook launched his own blog, Politics of the Plate, and posted links to PDFs he had created of those pieces. "I certainly wasn't reducing their value to Condé Nast," he says. "Nor was I making any money off of them."

Nonetheless, Condé Nast took issue with the move, according to Estabrook. He says that on Friday, he received an email from Condé Nast demanding the removal of the articles. Estabrook tells MediaPost that he immediately took down links to the PDFs and replaced them with links to Gourmet.com's archives.

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"There's no way I'm going to roll in the mud with these guys," he says.

As of now, it's not clear whether Estabrook's removal of the PDFs will placate Condé Nast. Estabrook says that he hasn't heard back from the publisher.

If Condé Nast owns the copyright to those pieces, the company could theoretically bring an infringement claim regarding the PDFs. But doing so would be an obvious public relations blunder -- and perhaps a legal one as well. After all, it's hard to imagine that a judge or jury would be particularly sympathetic to Condé Nast -- or any other publisher of a defunct magazine -- in an action against a freelance writer who was merely trying to keep articles that he wrote alive after the publication itself went under.

In any event, Estabrook's current links to Gourmet.com's site certainly shouldn't give rise to liability. While some publishers have sued news sites for linking to articles, many media law attorneys think that merely linking to an article and including a headline or other snippet is fair use. The argument for fair use seems especially strong when the person who posts the link is a writer who is merely trying to showcase his own work -- as opposed to a profit-seeking aggregator.

4 comments about "Condé Nast Takes On 'Gourmet' Writer For Posting Articles He Wrote ".
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  1. Jeff Rutherford from Jeff Rutherford Media Relations, LLC, February 16, 2010 at 9:02 p.m.

    So, so ironic. As this very interesting blog post explains in detail, Gourmet.com's own search engine optimization sucked - http://www.conversationmarketing.com/2009/10/why-gourmet-died-publishers.htm

    If they could have taken some very simple steps and optimized their site, so that all their valuable content - recipes, articles, etc. - appeared close to the top of Google's natural search results for the millions and millions of food and recipe related searches, Gourmet may be in business now. And, then, they wouldn't need to threaten authors who are simply trying to make their content visible.

    It's sad when experienced publishers who have excellent, sterling content - that could make them money online - make basic, dumb technologic mistakes that result in their content rarely appearing in natural search results.

  2. Richard Truesdell from Automotive Traveler, February 16, 2010 at 11:18 p.m.

    As an editor (Chevy Enthusiast magazine), a website owner (automotivetarveler.com/home), and a contributor to more than a dozen publications around the world, I think I can share a little bit of insight on Estatbrook's dilemma.

    First, the actual layout of the article in PDF form was copyrighted by Condé Nast so technically, before it could be published elsewhere, he would have had to ask Condé Nast for permission even though he wrote the piece.

    Beyond that, it all depends on what rights he surrendered to Gourmet/Condé Nast when the article was submitted. If it was something limited to first North American serial rights, which is the clause that a part of all of my invoices to the publications I contribute to -- I never sign any "all rights" requests unless I am properly compensated -- then Mr. Estabrook should be able to repurpose his work for other publications after any agreed to exclusivity agreements expire. Given that Gourmet has ceased publication, this is even more in his favor.

    My suggestion is to edit his piece, get new photos to illustrate the piece, and publish it where ever he sees fit. It probably wouldn't hurt if he placed somewhere at the end of a web posting that "This article appeared previously in the (month/year) issue of Gourmet magazine. Then I believe that Mr. Estabrook will have covered all his bases.

    All of this is a moot point if he signed away all rights, and Condé Nast has a contract to this effect, in their possession.

    Does this make sense to the other editors, publishers, and contributors reading this?

    Richard Truesdell
    Editor, Chevy Enthusiast magazine
    Editorial Director, automotivetraveler.com
    Contributing Editor, Cars & Parts magazine

  3. Theresa m. Moore from Antellus, February 17, 2010 at 1:34 p.m.

    This is rather interesting. I sympathize with Mr. Estabrook's dilemma in that he signed away all rights to the articles. But if the magazine is defunct, it stands to reason that he has the right to republish them as the original author; and if he simply removes all mention of the publisher, the magazine and anything else which is retained in copyright, he ought to have the right to post them wherever he sees fit. That he is posting them for free does not violate the publisher's copyright if they were offered for free in the first place. Yes, a dumb move, and one which could arguably ruin the publisher's reputation with authors for years to come.

  4. Allen Maccannell from SenderOK, February 18, 2010 at 7:57 a.m.

    I can see how they may have wanted to use the articles in their Bon Appetit magazine (or whatever the sister food publication was - I forget).

    In that case, they just got some great advertising for those articles and the author did comply quickly so everyone can be happy.

    But what would have happened to Jane Austen if the rights to "First Impressions" had been bought in 1798 and then the only manuscripts burned or lost forever in a drawer with Jane unable to say "hey, I will give the money back because I want my work published"? We never would have had its renamed version, Pride & Prejudice.

    Then there was her other work, initially entitled "Elinor & Marianne" and later renamed in the fashion of the early 1800s (alliteration). What if a competitor bought the rights to that and burned it?

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