A Novice Writer's Guide to Rights

by Claire E. White
The Internet Writing Journal, December 1997

The freelance writer's or first-time novelist's dream is to make the sale. But what happens next? Usually a contract will be sent by the editor outlining the rights you will be selling in exchange for your fee. Knowing the basic rights that you own in your work and the terms used by the publishing world can help avoid some nasty disappointments down the road.

What Do You Own?

The original author of a work owns the copyright to that work, unless he or she has assigned those rights to a third party. Copyright protection arises automatically, without any action taken by the author, the moment the work is fixed in a tangible form so that it is perceptible either directly or with the aid of a machine or device1. The owner of a copyright really owns a "bundle" of rights, like a bundle of sticks. Each stick or right can be sold or assigned separately to a third party.

Types of Rights Commonly Sold by Freelancers

First Serial Rights: A writer selling First Serial Rights is selling a newspaper, magazine or periodical the right to publish the story, article or poem for the first time in any periodical. All other rights remain with the author. First Serial Rights may be limited by geographical limits. For example, First North American Serial Rights ("FNASR") limits the license to periodicals published in North America, which includes the United States and Canada. First Serial Rights sold to an online publication cannot be limited by geographic area because the Internet is accessible by a worldwide audience.

One-Time Rights: A license of one-time rights, also known as simultaneous rights, grants the licensee the right to publish the work one time. This is a non-exclusive right which means the author may sell one-time rights to several publications at once -- normally to publications with different audiences.

Second Serial (Reprint) Rights: A license of Second Serial Rights gives the publication the right to publish the story, article or poem after the piece has already been published by another periodical. Second Serial Rights are nonexclusive; the author may license the piece to more than one publication.

All Rights: A license of All Rights is exactly that; the author is giving up all rights he or she owns in the work. The publisher may publish the work in any format -- print, film, electronic formats such as CD ROMs, and on the Internet without providing additional payment to the author. The author retains the right to state that he or she authored the work, but loses all the other rights to the work, including the right to publish, market or distribute the work, to create derivative works, or to perform the work.

Subsidiary Rights: In a book publishing contract, subsidiary rights are all rights owned by the author other than the right to publish the book. Subsidiary rights are negotiable in a book contract and will cover such potentially valuable rights as movie, film, videotape and audiotape rights, electronic rights such as CD ROM publishing, translation rights, book club rights, foreign rights etc. Subsidiary rights may be retained by the author so that the author's agent can negotiate separate deals for each of the rights, or the subsidiary rights may be sold to the book publisher so that the publisher can negotiate the rights. Each situation is different, however, many author's attorneys advise authors to retain the subsidiary rights on the grounds that the author's agent or attorney can obtain a more favorable deal for the author than the publishing house will.

Dramatic, Television and Motion Picture Rights: These are the rights licensed when selling work for use in a play, television or film. Most commonly, a work will be optioned under the following terms: the author is paid 10% of the agreed upon purchase price of the work, in exchange for the exclusive right to market and produce the work. The usual time limit for an option is one year. If the option expires and is not exercised, the author keeps the money and is free to option the work to someone else. Having a work optioned is no guarantee that it will ever be made into a film, play or television show.

Work For Hire: If an employee creates a work within the scope of the employee's employment, any work created belongs to the employer including the copyright to the work. This is called "work for hire". For example, a comedy writer for a sitcom writes the script for one episode. The script is the property of the employer, not of the writer because they were written within the scope of the writer's employment. The writer does not own the copyright to the script; the employer does. "Work for hire" can also occur in a freelance situation if the author signs a specially commissioned "work for hire" agreement before the development of the project. Unless an independent contractor (the writer, musician etc.) signs a specially commissioned "work for hire" agreement, the copyright to the work created will remain with the author of the work. If a specially commissioned "work for hire" agreement is signed, the copyright to the work created will belong to the developer of the project.

For example, Production Company wishes to develop and produce a documentary film. Production Company will enter into agreements with independent filmakers, writers, and musicians to create original work to which Production Company will own all the rights. In order to own the copyright to the finished product, Production Company will enter into specially commissioned "work for hire" agreements with each person who contributes original works to the final film. "Work for hire" agreements are common in the entertainment industry as well as in ghostwriting arrangements. The author must realize that if such an agreement is signed, he or she is giving up all his or her rights in the finished product forever. If a confidentiality clause is included in the contract (such as in a ghostwriting situation), the author cannot disclose the fact that he or she actually wrote the piece.

Electronic Rights: The licensing of electronic rights to a work in this day of expanding technological capabilities is a hot topic in the publishing industry. The best way to handle electronic rights is to clearly spell out exactly which electronic rights are being licensed and which are not. Electronic rights can encompass the rights to sell and distribute the work on CD ROM, to store the work in a database, such as Lexis-Nexus, to publish the work on the Internet, to archive the work on the Internet and the publishing of the piece on as-yet not invented electronic media. In a sense, the law of electronic rights is being written now by the writers, editors and publishers. Eventually, the terms will be recognized to have standard meanings in the industry. In the meantime, freelancers who write for online publications should ask the editor to spell out in plain language exactly what rights they are purchasing. If you don't understand what an editor means by "First Electronic Rights", then ask. Most editors are happy to explain their publication's policies. And keep copies of all the correspondence, whether it is by letter or by email. The correspondence itself constitutes a binding contract if it clearly shows what the parties intended.

Freelancers selling to the American periodical market should be aware of the recent court decision in Tasini v. New York Times, 93 Civ. 8678 (S.D.N.Y Aug. 13, 1997). In Tasini, District Court Judge Sotomayor ruled that in the absence of a contract that publishers are entitled to place all of the contents of their printed publications into an electronic database such as Lexis/Nexus or onto CD-ROM without the freelancers' permission and without compensating them for reprints. Judge Sonia Sotomayor based her decision on the U.S. Copyright Act which allows reprints without freelancer's permission or compensation if the freelance work is part of a "collective work".

There are a couple of important points to keep in mind about this decision. First, the Tasini ruling was in the context of a summary judgement hearing; there was no trial. The ruling has been appealed by the Plaintiff, Mr. Tasini, the President of the National Writer's Union ("NWU"). Furthermore, the ruling applies only in cases where there is no contract between the freelancer and the periodical. Since Tasini, almost every major newspaper has instituted formal contracts with freelancers specifically covering archiving, database rights and other electronic rights. Although many freelancers are unhappy with the form of these new contracts -- which generally require the freelance writer to relinquish all rights, electronic or otherwise -- many are signing the contracts. Finally, the ruling is silent on the issue of Internet publishing and does not apply to situations where there is a contract between the freelancer and the publication.

Conclusion

The novice writer must learn the business end of the writing and publishing industries in order to survive. Most freelance writing agreements are not complicated documents and most writers are perfectly capable of understanding and negotiating their own contracts if they get in the habit of reading carefully, asking questions when they don't understand something, and taking the time to learn the basic terms used in the industry. The time spent researching these issues will be well worth the time spent. Most agents will not represent freelancers or short story writers because the compensation is too low for it to be worth their time and effort. However, there are certain situations when it is strongly advisable to have a knowledgeable agent or attorney do your negotiating for you. Book contracts, for example, are usually complex documents which contain a myriad of pitfalls for the layperson which, as a general proposition, should not be signed without having an attorney review it first. So, make time to learn the business basics of being a writer. After all, it's your work -- shouldn't you know what your rights are?

1 For a detailed discussion of basic copyright law, including how to register a copyright see "Basic Copyright Concepts for Writers", The Internet Writing JournalTM, Vol. 1, Issue No. 2 (Sept., 1997).

PLEASE NOTE:

This article is intended to be a general summary of basic rights concepts for writers and may not be relied upon as a substitute for legal advice. If you have a legal matter involving copyright issues you should consult an attorney regarding the specific facts of your case.

**Claire E. White is an attorney with over ten years' experience in major law firms. She is a former instructor at the University of California at Irvine Extension and is a frequent lecturer and writer on legal and business topics including computer law, corporate and intellectual property law, the Internet and effective business communications. She is the Editor in Chief of The Internet Writing Journal®.


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