5.1 Know Your Rights

KNOW YOUR RIGHTS
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First of all, it's important to understand one basic concept about copyright laws. They were created to protect the author, not the publisher. An author automatically owns all rights. Publishers, then, work toward negotiating for certain of those rights, for compensation of course.

The moment you create a story it's copyrighted, even if you never share it with anyone. It's also yours upon first public showing. This means that as soon as you put a work up on the internet, it’s automatically copyrighted. But there are some other aspects about copyright of which authors need to be aware.

First of all, don't use the (C) symbol. That’s just a C in parentheses and doesn't designate anything. If you aren't able to create the symbol then simply write the words "copyright" instead. However, both the symbol and the word are essentially meaningless because it's copyrighted whether you display the symbol or not. Authors like to present it, though, to at least remind folks.

This would be the way you might write it:

Copyright 2013 by Eric Wharton, all rights reserved.

All rights reserved is what you can proclaim before you grant rights to anyone, regardless if it has the symbol or not. Your rights, however, should be identified. When you first create a story, you have all rights. After you sell them or a portion of them, you have different rights. Don’t say “all rights reserved” at that point.

There is also something called the Poor-man’s Copyright. If you don’t want to put stories on the internet to prove copyright, print out your stories. Put them in an envelope and mail them to yourself. Never open it and if there is ever a question, it can be opened in court to prove date of creation.

Most countries have free publications available on copyright laws, and you can request a copy. Check with your copyright office. However, the following are a few of the basic rights the author gives up upon publication.

First-time Rights

You are giving the publisher first dibs on publishing the article. You might want to find out when they plan on using these first rights. As soon as they have published the piece, you are free to submit the same article to another market.

Non-Exclusive Rights or One Time Rights

You are allowing the publisher to use the piece one time. You still own the piece and can submit it anywhere else. As a writer, one-time rights are the best to sell. It keeps your article free to submit to another market. "Non-exclusive" is pretty much self-explanatory. It means you give a site, or any other publication, the right to publish your work, but not for their exclusive use. You can grant these rights to any number of publications simultaneously. Usually, these publications cater to different audiences, and unless it has been explicitly stated otherwise, you're free to use your own discretion in granting these rights to whomever you choose.

First Serial Rights

To grant these rights to a publisher, your work cannot have appeared in any other publication. These are the rights most often granted to book publishers, as well as newspapers, magazines, periodicals, and in some cases, e-zines. In the case of books, they retain these rights until the book goes out of print, at which time all rights revert back to you. As you can imagine, this may or may not happen in your life time, depending on whether or not you wrote a best seller. For the other publications listed, these rights normally revert back to you after an agreed upon amount of time, though they do retain the right to reuse your articles or stories in a collective work, and storage in their archives.

Second Serial Rights

Sometimes referred to as Reprint Rights, these are non-exclusive and can be granted to more than one publication. This type most often refers to the rights you grant magazines, newspapers, etc., for stories or articles that have appeared in previous publications and don't normally come into play when book publishers are involved.

Subsidiary Rights

You've probably heard of these in relation to book publishing. These are all the rights you own aside from the right to publish your book. The right to publish the book is self-evident in granting "first time rights" to a publisher. Subsidiary rights have the potential to be extremely valuable when you consider movies, videos, books on tape, electronic publishing, book clubs, and more. These rights can be, and often are, sold to book publishers, but an agent or lawyer may be able to get you better deals later if you retain these rights. These are where most pitfalls lie in book contracts, in which case, it's in your best interest to have a lawyer go over the documents with you before you sign anything.

All Rights

Try not to give these up. If the publisher is asking for them, be sure you want to give them up. Once he owns the rights to the piece, you cannot use the piece elsewhere—it’s no longer yours. The only right you keep is in the telling of it. You can say "I wrote that," but the licensee you granted the rights to can publish your work in any form they choose. You can't even create further works based on the book you signed over without breaking copyright laws in the process. These rights never revert back to you. Authors generally try to avoid signing away all rights, and publishers generally try to gain them.

Television and Motion Picture Rights

These, as well as Dramatic Rights governing plays, are not sold immediately. Instead, they are optioned. What this means is that you and the company interested in your work agree on a price, and then you are paid a percentage (normally 10%) of that amount. It's much like a down payment. The company then has the option to produce your work. Normally the time limit is one year. If they have not exercised their option within the stipulated time, you're free to take your work elsewhere, and you get to keep the money you received. Remember that an option is not a promise. You can make some money this way, but it's not a guarantee that your script will ever be a made into a movie.

Electronic Rights

Plug those words into a search engine and just see all the information you get. This is a hot topic in the publishing world. Freelance writers are urged to retain these rights at all costs, while publishers are doing all they can to gain them.

The Tasini vs. New York Times case is well-known in the industry. The New York Times sold articles to Lexis-Nexus (a database storage system) without permission or payment to the authors. The Times felt electronic publishing fell within their first time publishing rights. The court didn't uphold that statement, but did rule in favor of the publishers by stating the sale to Lexis-Nexus was a collective work, and so was allowable. The ruling was overturned in Second Circuit Court of Appeals, and on June 25, 2001, the Supreme Court upheld the ruling of the Second Circuit. (1)

This means, be careful when signing contracts. Although it would seem the writers "won" the case, it has created a host of problems in trying to sign contracts with publishers determined to get the electronic rights. Since no rules have been specifically created concerning electronic rights, it's in your best interest to make sure you and the publisher are using the same definition.

For a more recent example, look into the Napster case. It may be focused on music, but the publishing world needs to pay attention. Electronic rights of music is directly related to electronic rights of writing.

Work for Hire

You retain absolutely no rights to the work. This has traditionally been implicit when hired as an employee for a television series and hasn't required a specific contract to enforce it. The work is the property of the employer. It is important to note that with Tasini and Napster (and others) bringing the electronic rights issue to the forefront of publishing, work for hire contracts may be required in situations formerly exempt. It's in your best interest to look into it. When you work for hire, you will most likely receive credit as the writer, but you never own the work.

In freelance situations though, if you have been hired as an independent contractor, you retain the rights unless you sign a "Work for Hire" contract, which gives the developer full rights.

Ghost Writing

Also falls into the Work for Hire category. In such cases, there is normally a confidentiality clause in the contract ensuring that you never disclose your involvement.


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FOOTNOTES

The Complete Review. "Tasini v. The New York Times: A Note on the Consequences" Complete Review Quarterly 2(3). August, 2001. www.complete-review.com/quarterly/vol2/issue3/tasini.htm, accessed 2013.