The Complete Writer
Part VI. Ethics and Legality: Rights, Obligations, and Risks
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Rights and Contracts
The question beginning writers most often ask is “how do I copyright my work?”
Just put it on paper. Under the Copyright Act of 1976, your rights in a work take effect the minute you write it. You do not have to publish it or register it with the Copyright Office to receive protection. A work written after 1978 is protected for its author’s lifetime plus 50 years. A work written anonymously or under a pen name is protected for 100 years after the work’s creation or 75 years after publication, whichever is shorter. Works done for hire (about which we will say more below) receive the same 100-year protection, except the publisher, not the writer, owns the copyright.
What is “copyright”?
Copyright is a legal concept that gives you the right to reproduce your work; to prepare derivative works based on it; to sell, rent, lease, or lend the work; and to perform or display it publicly. Copyright permits you to recover damages from other people who do any of these without your permission.
A writer owns many kinds of rights to a work and may choose to sell part of the ownership, to lease the right to use the work, or to sell all the rights to it. The law’s purpose is to let you say how your work will be used and to guarantee that you will be paid for your efforts.
To be eligible for copyright, the work must be fixed in a tangible form: copiable with a machine or other device. Literary works; musical, dramatic, pantomime, and choreographic works that have been notated or recorded; pictures, photographs, and sculptures; motion pictures, videotapes, or other audiovisual works; and sound recordings are protected.
Intangible works, such as improvised speeches, dances, or performances not written or recorded, are not covered by copyright. Nor are ideas, titles, names, short phrases, slogans, lists, and the like.
Note that copyright covers the creation, not its physical form. In other words, someone could buy a famous writer’s manuscript for its value to collectors, but owning the paper and ink would not confer the right to reproduce the story.
Although you don’t have to register your work to receive protection, registration with the U.S. Copyright Office does give you some advantages. Your work must be officially registered before you can sue someone for infringement, and if you registered the work after the offense took place, you can sue only for actual damages—that is, for the income or other benefits you lost as a result of the theft. If you had already registered your copyright, you would be permitted to sue for statutory damages (a punitive award) or recover the costs of attorneys’ fees. There is, however, a ninety-day grace period following the date of publication. If you register within this period, you can sue for statutory damages, actual damages, and attorneys’ fees, even if the infringement took place before the registration.
As a practical matter, it’s not worth registering every magazine article you send out. Normally, you have a contract or letter of agreement that spells out the rights you are selling before you present a work to a publisher. But if you have some good reason to believe someone might steal your work, register it. Fill out a form (available at reduced cost online) from the Register of Copyrights, Library of Congress, Washington, D.C. 20559 or at the copyright office’s website:
If you wish to retain copyright to an article that is to be published in an uncopyrighted collective work (such as, for example, a club’s cookbook), insist that your copyright notice be printed on the article’s opening page. A copyright notice consists of the symbol ©, the word “copyright, or the abbreviation “copr.,” followed by the year the work was written and the owner’s name. This notice must appear on works that you send to the copyright office for registration, and anything that is printed or distributed in an unrestricted way should have a copyright notice on it.
Magazines and newspapers normally take the responsibility for registering all the work that appears in each issue. The copyright notice appears with each number, usually near the front of the publication.
The United States is a signatory to the Berne Copyright Convention, a multinational treaty that covers copyright questions. According to this international law, you don’t have to put a notice on your published work for it to be protected in the countries that have signed the treaty. However, because under U.S. law you may not collect statutory damages and attorneys’ fees unless the notice was on the work, you should be sure a copyright notice appears with all your published works.
As the owner of a copyright, you can sell certain parts of your rights to a work. Let’s consider a few.
First serial rights. The word “serial” here refers to periodicals—works that come out “serially” or in a continuing manner. That is, the term means “magazines or newspapers,” not “installments.”
When you sell “first serial rights,” you offer a magazine the right to be the first periodical to publish your article, poem, or story. The remaining rights belong to you. You retain the right to sell the same, unaltered work to another periodical after the story appears in the first publication, and to be paid should the original buyer reprint it.
Logically enough, then, you may also sell second serial or reprint rights. This allows a publisher to reprint a piece that has already appeared somewhere else.
Sale of one-time rights promises nothing about whether the buyer is the first to publish your work. It simply grants permission to publish the piece once.
First North American rights guarantee that the buyer is the first in North America to publish the work. First U.S. rights are restricted to the United States.
Foreign serial rights cover periodicals published in countries outside the United States. If you have sold only first U.S. rights, you are free to resell your story abroad.
Simultaneous rights allow two or more periodicals to publish something at once. The term is used by writers who self-syndicate articles by sending the same work to many different newspapers across the country at once. Make sure your editor understands this by typing “simultaneous submission” in an upper corner of your first manuscript page.
Syndication rights permit syndicators to sell works to several publications at once, taking a commission on sales and passing the rest to the author.
Subsidiary rights are additional rights, usually listed in book contracts. They include dramatic, motion picture, translation, foreign, and various serial rights.
Are Internet sites copyrighted?
You bet. Just because the reproducible medium in which the work is published happens to be digital does not negate the author’s rights in the work.
What is the reference to “Creative Commons” seen on Wikipedia? Doesn’t that give anyone the right to use the work as they please?
Creative Commons is a nonprofit organization dedicated to enlarging the range of creative works that people can build upon and share. Through Creative Commons, writers and artists can obtain any of several licenses that specify what rights they waive and what rights they retain. A notice of a Creative Commons license does not mean others can grab the work and do anything they please with it; you must examine the license and discover what rights are available before reusing the author’s or artist’s work.
What is public domain?
“Public domain” means the work is not covered by copyright. This may occur because the copyright has expired (see above), because its author has explicitly placed it in the public domain, or because it was produced by a government entity. Works in the public domain may be reproduced without permission.
An experienced editor, freelancing between jobs, took a job as a consulting editor to start up a regional magazine. Once the magazine was running, he hired a permanent editor and managing editor and then stepped into the background.
Shortly afterward, the new editor called and explained that a story had fallen through and he needed 2,000 words to fill the hole—fast.
Promised a healthy fee, the consultant raced around the city tracking down and interviewing people, spent a weekend cranking out the desired 2,000 words, and dropped the piece on the editor’s desk Monday morning.
A week later, he had heard not so much as “thanks, we’ll be in touch.” So he called and asked after the story.
It was all right, said the young editor. But it was more copy than they needed, and so they had to cut it to fit their space. And by the way, since they couldn’t use the 2,000 words they had asked for, they would pay him only for what they could use, at an arbitrary per-word rate.
“I should have had a contract,” mourned the freelance, “but my god! I’m the consulting editor!”
There is no such thing as a gentleman’s agreement in this business.
You should always have a contract before you write a story, because it protects you as well as the publisher. It spells out what is expected of you and what you can expect from the publisher, says how much you will be paid and when, and establishes your rights in the work. If a magazine folds before it pays you, a contract establishes you as one of its creditors.
A contract for a periodical assignment should cover these items:
- The title and length of the story
- A brief description of its content and approach
- The deadline
- The rights you are selling
- The fee you will receive
- The kill fee you will receive if the magazine cannot publish the article through no fault of yours (usually about one-third of the total fee)
- Whether you will be paid on acceptance or on publication
- Whether you will be reimbursed for routine expenses
- A guarantee that your work is original and, to the best of your ability, accurate and free of libel
In addition to the work-for-hire clauses discussed above, you should watch for these pitfalls:
Some contracts include a sentence saying the author indemnifies the publisher against any claims for libel, invasion of privacy, defamation, or anything else for which someone might choose to sue or demand redress. Never sign a contract that contains such a clause.
Unless you are a lawyer, you have no way of second-guessing the reasons litigious individuals threaten to file suit. Nor is it your job to purge the story of all actionable material. It is the editor’s responsibility to recognize passages that may be defamatory, libelous, or invasive. If any such statement makes its way into print, the magazine is as guilty as the writer. Nevertheless, publishers have been known to buy off people who claimed they were wronged and then bill the writer for the cost.
If the clause is modified with words that say the article does not libel or defame to the best of the writer’s knowledge, it is acceptable.
Payment on publication vs. payment on acceptance
Too often, agreements to pay a writer when an article is published mean “pay never.” Magazine copy usually sees print months after it is accepted. Should the editors decide, for whatever reason, not to run your article, you get no pay for your contracted work. If the magazine folds before the story runs, a bankruptcy court will not number writers with payment-on-publication contracts among the magazine’s creditors.
For fulltime freelance writers, payment on publication makes it impossible to budget living expenses, because they never know how much they will be paid in a given period. One month $5,000 may come in; the next month, the take is $89. For this reason, established professionals hold out for payment on acceptance of the piece. If the editor will not agree to this, the writer declines the assignment.
A beginner may have to take payment on publication to establish some credits. Always ask to be paid on acceptance. As you gain experience, seek out publishers who will treat you fairly, and avoid pay-on-publication markets.