writers.com feature:

Rights Basics

By Paula Guran

(Original Version: DarkEcho 5.20.99; This Version October 2004)

Many of the amateur editors and publishers you will deal with as a beginning writer don't know much more than you do about publication rights. You don't know anything? Like I said before -- ahem.

Even as a "professional" writer, you'll find that most of the responsibility for protecting your rights when it comes to short fiction or freelancing non-fiction is entirely yours. Most agents handle only books, it doesn't pay for them to deal with the small stuff. Knowing about the rights you are offering is a responsibility most writers have to take on themselves in one form or another.

We aren't discussing copyright here. Copyright exists the moment the work is fixed in a tangible form. The owner of a copyright owns a variety of rights that can each be sold or assigned separately to a third party. These rights include the right to reproduce the work in fixed form; the right of creating (deriving) a new work based upon an existing work; the right to distribute the work to the public by sale, rental, lease, etc.; and the right to perform or show the work to the public. It you'd like to know more about this subject, try the Copyright Basics.

For the beginning writer, there's often very little one can do to limit what rights s/he is selling when it comes to selling to professional periodicals or anthologies. It's usually a take it or leave it proposition when dealing with pro publishers and short fiction. Face it, your treasured work is just not worth that much hassle from their viewpoint. In the world of short stories, all but a very few top pro writers are usually accepting the very same terms you are. You have to use some common sense and realize you are not Stephen King and your work is not going to "make or break" a publication's value.

At the same time, that doesn't mean you should just sign on the dotted line no matter what. If you don't understand something or find something questionable -- ask the editor about it. It may be either simply explained or changed. Contracts are negotiable and you should -- politely -- attempt to negotiate if you. The editor might agree or s/he might not. Then you have to make a choice about whether to sell or assign those rights. If you feel that you are just giving up more than you wish, then don't sell.

When dealing with less-than-pro-level publications, you not only have room to negotiate, but you may have, with a little self-education, a better understanding of your rights than the publisher does.

You should have, minimally, a basic understanding of the vocabulary involved. Here are a few terms with which to become immediately acquainted:

First Serial Rights or First Periodical Rights:
Usually means selling a newspaper, magazine or periodical the right to publish the work for the first time with all other rights remaining with the author. There can be geographical limitation to these rights: First North American Serial Rights ("FNASR") limits the license to periodicals published in North America. The term "serial" rights is an archaic and sometimes misused term. It can also refer to timing -- the right, for instance to publish an excerpt from a book in a periodical before it is published in book form. With the advent of Web periodicals an argument *might* be made that Serial Rights can be sold to an online periodical -- but they cannot be limited by geographic area because the Internet is accessible by a worldwide audience.

First World Rights, First English Language Rights, First International Rights, First Universal Rights or (simply) First Rights:
Obviously these phrases can be more easily used in conjunction with work you first publish on the Web. However, many print publishers distribute outside of North America now, so you'll find the first two phrases used with print media. Again, you are selling the initial publication of your work.

One-Time Rights:
Granting the right to publish the work one time. If "non-exclusive" the author may sell one-time rights to several publications at once.

Electronic Rights:
Electronic rights can be all sorts of things -- CD-ROM, optical, digital, magnetic, etc. formats; database reference access; Internet publication and archiving; distribution via "future technologies" -- and terminology and usage is not yet standardized. For online publication, some corporations with professional sites now tend to ask for "work-for-hire." (See below.) Others want rights, either exclusively or non-exclusively, "in perpetuity." These contracts make their lawyers happy. They simply need never to deal with the writer again and the material can be used (or not) as they wish in any form they wish.

Otherwise, make sure you understand what SPECIFIC rights are being bought for online publication, for what period of time they are being purchased, level of exclusivity, and what subsidiary rights are involved if any. (A subsidiary right, in general, is any right that is not the primary one being sold.). Keep the editor's explanation on file as this correspondence itself can be, if it shows clear intent, considered a binding contract.

Reprint Rights:
Granting the right to publish the work after it has already been published elsewhere.

All Rights:
Selling/granting of all rights an author owns in a work. The work can be published in any format without further compensation to the author. Although the author can still be acknowledged as the work's author, no other rights -- including the right to create derivative work or perform the work -- are retained.

Work For Hire:
Work that is contracted for and its copyright owned by the "employer." You are giving up all your rights to that work and sometimes, if a confidentiality clause is included, the author cannot even disclose his/her authorship. The publication can also change your material or sell it to another publication. You may even be liable for copyright infringement if you write another work that is similar to the work-for-hire. Use caution when dealing with work-for-hire, it may not be worth losing all rights to your own work.

What should you look for in your first contracts (or often just correspondence with the editor) concerning rights?
Obviously there are many more things that this very basic rundown can't offer. If you are lucky enough to be a novice dealing with a book contract, get a knowledgeable and reliable agent or attorney. (And I am offering no legal advice here whatsoever. But you can at least, in most short fiction cases, at least expect simple specifics and clear terminology -- if you are unclear about something ASK and get the answer in writing (email will do.) You might negotiate some points -- the length of time the rights to a story are held, for example. The world of small publishing is a risky business and often editor/publishers are loathe to admit that their periodicals are dead. There's no use tying up salable work for years with a publication that may never exist. Be cautious about giving away any future rights -- re-use, reprint, anthology -- without further compensation or any EXCLUSIVE assignation of those rights.

Importantly, have some idea of the worth of your work and your place in the not-so-grand scheme of the publishing world. As you acquire experience and prove your marketability your worth increases and so does your room to demand more compensation or flexibility in the sale of your rights to your work. At the same time, if you have only a string of no-pay or non-pro credentials and are offered a slot in a professional anthology, don't suddenly try to play the "bigtime pro" and make demands.

Copyright (c) 2004 Writers on the Net. This feature was originally published in "Writers.com," the monthly electronic newsletter of Writers on the Net. This publication may not be reproduced in print or posted elsewhere on the Web or used in any other fashion, in whole or in part, without written permission from Writers on the Net/Writers.com. Subscribe here or by emailing writers@writers.com.

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