Understanding Rights and Copyright

by Moira Allen

Two of the most common questions I hear are "How do I copyright my work?" and "How do I prevent editors from stealing my ideas?"

Copyrighting your work is probably the easiest part of writing, because your work is automatically protected the moment you write it down. You do not have to "register" a copyright for it to be valid.

If you're nervous, you can place a copyright notice on your material by putting the following information in the upper right corner of your document:

Copyright © 200X by (your name)

Drawing a circle by hand is acceptable, but substituting parentheses for the circle is not. If you can't reproduce the circle, don't worry; the word "copyright" alone is sufficient.

Such a notice is wise if you're handing out your work to friends and relatives or, perhaps, to a writer's group. Be aware, however, that some editors consider it a sign of amateurism (they already know your work is copyrighted).

For further protection, you can register unpublished works with the Copyright Office for a $45 fee. This ensures protection if you are involved in a copyright infringement suit. Such violations, however, are rare; you don't need to register just because you're sharing a story with a writer's group or submitting it for publication. However, you do have to register your copyright to be able to claim statutory damages in the event that you need to sue someone for copyright infringement. (If your work is not registered, you can claim "actual" damages, but not statutory damages.) In addition, the work must have been registered prior to such a suit.

Do Editors Steal Ideas?

We've all heard stories of writers who sent their manuscript to a magazine, got rejected, and then saw "an article just like it a month later." Usually this is a coincidence. As an editor, I often received multiple submissions on virtually identical topics. It is not uncommon for several writers to have the "same" idea -- which is one reason copyright does not protect ideas per se, but only the written expression of those ideas.

In addition, if you actually see a similar article "a month later," you can be certain that article was already on file long before yours arrived. Even if such an article appears many months after yours is rejected, that's still not evidence of foul play; an article may remain in an editor's files for months before being published.

Nor does "similar information" constitute a copyright infringement. Information is not covered by copyright, and it's not uncommon to see an article that contains information similar to your own. (Another article on rights and copyrights, for example, will contain information quite similar to this one.) Copyright protects only the specific expression of that information. Only if an article is directly copied (or contains so much identical content as to be clearly plagiarized) is it a violation.

Even if a copyright violation does occur, you may want to think twice about taking legal action. Legal action depends upon the "cost" of the infringement: If you can demonstrate a significant loss of income or reputation from the infringement, you may have grounds for a case. Otherwise, it's hardly worth the effort.

(For more information on this issue, see my article, Will an Editor Steal My Ideas?

Copyright vs. Use Rights

Copyright refers to your right to claim ownership of a particular piece of "intellectual property." It also means that no one else can reproduce that work, sell it, or distribute it without your permission.

You have the ability to grant that permission, however, through "use rights." Licensing a "use right" does not affect your ownership of the copyright itself, unless you license away "all rights" or "work-for-hire" (see below).

Some publishers are under the mistaken impression that if they don't "buy" any rights, they aren't actually "using" them. This, however, is not true. As an author, you need to be aware that any publication of your material constitutes a transfer of rights.

Following are the rights most commonly offered by writers and acquired by periodical publishers (print and electronic):

• First North American Serial Rights (FNASR). This right is commonly licensed to magazines, newspapers, and similar periodicals. Specifically, you are granting a publication the right to reproduce your material in a "serial" (e.g., a magazine or newspaper), within North American (including Canada), for the first time.
  
  It's equally important to know what you're not selling. You are not, for example, licensing a publisher to reprint your work in another format, such as an anthology. The publisher may not distribute the work outside North America; that would require a transfer of "international rights." Nor are you transferring "electronic rights" -- though many publications are now claiming the right to publish material on a website as "part" of FNASR. FNASR is an "exclusive" right, which means you can't transfer it more than once or to more than one publication.
  
  
• First Rights. Unlike FNASR, this term does not specify where or how material may be published, only that the publication has an exclusive "first use." Electronic and non-traditional markets often use this term. To protect your remaining rights, however, you may wish to request a more specific term, such as "first serial rights" (limiting use to periodical), "first international rights" (for distribution outside North America), or "first electronic rights."
  
  
• One-Time Rights. This grants a publication the non-exclusive right to use your material once (but not necessarily "first"). "Non-exclusive" means that you can license this right to more than one publication at a time. For example, you might license one-time rights to a column to several non-competing newspapers. "One-time" rights are often sold after you've sold FNASR.
  
  
• Second Rights or Reprint Rights. Once you've sold FNASR, your next sale of the same material is likely to be covered under "second rights" or "reprint rights." When you offer this right to a publication, you are clearly stating that the material has been published before and is a reprint (which usually brings a lower price). Often, the original publisher will ask to be credited when material is reprinted. As with one-time rights, you can often license "second rights" to more than one publication simultaneously.
  
  
• Electronic Rights. This catch-all phrase is extremely hazardous to writers, as it makes no distinction between different types of electronic publication -- e.g., publication on a CD-ROM, on a website, or in an electronic database. Consequently, if you license "electronic rights" to one form of electronic publisher, you may lose the right to sell that material to another and completely different type of publication.
  
  It's wise, therefore, to specify the type of electronic rights you are licensing. If you're selling material to an e-zine, you might wish to specify that the license is for "first Internet use." If a print publication wishes to post your article on-line, you may wish to specify "one-time non-exclusive Internet use." Another option is to insert an "exclusion" clause into your contract to specify the types of electronic use rights that you are not transferring. Be wary of transferring away all electronic rights, or you may lose the right to post your work on your own website!
  
  As mentioned above, many publications are now attempting to claim "electronic rights" as a part of FNASR. When you license FNASR to a print publication, be sure to ask whether the editor believes this "includes" the right to reproduce your material on a website or in another electronic form. If so, have this use included in writing -- and note any exclusions that you feel are necessary for your protection.
  
  
• All Rights. This term, loathed by writers, is often used by publishers who want to avoid the need to buy additional rights later. By acquiring all rights, for example, a publisher acquires electronic rights as well.
  
  Once you've sold "all rights" to a piece, you can never sell that piece again. All you retain is the right to claim authorship. You may even be precluded from selling revisions or rewrites of the same material.
  
  That doesn't mean that you should never sell "all rights." In some cases, the benefits of a such sale may outweigh the lost potential for resale, especially if there is a limited market for that particular work. If you do sell "all rights," however, be sure that you are being adequately compensated. (For more information on this topic, see Selling All Rights: Right or Wrong?
  
  
• Work for Hire. This controversial term is showing up with increasing frequency in magazine and other publishing contracts. Originally, it referred to work produced within the scope of a person's employment (e.g., if you worked for a publication, the articles you wrote in the course of your job were considered "work for hire," belonging to the publication rather than to you). Lately, however, some publications are attempting to claim that if a piece is "assigned," that constitutes a "work for hire" agreement (even if the original idea was yours).
  
  When you sign a "work-for-hire" agreement, you lose all rights to your work, including your copyright. If a publication chooses to run that work without your byline (or under another byline), it has the right to do so. The publication also has the right to edit, alter, reprint, or resell your material. Most alarmingly, you may even be liable for copyright infringement if you write another article that closely resembles the "work-for-hire" piece.
  
  When faced with a work-for-hire clause, your first act should be to attempt to renegotiate the contract (even if the best you can get is an all-rights clause). If that fails, you must consider very carefully whether you wish to renounce all claim to that piece of work, and whether the benefits are worth the cost.

Can You Protect Yourself?

Knowing your rights is the most important step you can take toward protecting your work in today's competitive marketplace. But can you do more?

Some writers' advocacy groups say that you can. Such groups recommend "boycotting" publications that insist on all-rights or work-for-hire contracts, or that demand ill-defined electronic rights or lump those rights under terms such as FNASR. If you're faced with such a contract, such groups suggest that you take your work elsewhere.

Unfortunately, such tactics have little effect. With thousands of freelance writers competing for the same markets, publications have no incentive to change policies just because one or two writers decide to go elsewhere. No editor is likely to lose sleep over the fact that you, or any other writer, is "boycotting" that publication.

What you can do is negotiate, as tactfully and firmly as possible. If an editor seems unclear on the definition of a particular rights clause, educate that editor -- but do so politely. If an editor claims that s/he is unable to alter a contract, don't assume it's a lie; in many cases contracts are developed by a publication's legal department. If you can't persuade an editor to change the contract, attempt to negotiate a higher fee, or a specific "exception" to the rights (e.g., the right to use certain portions of the material elsewhere in a non-competing market).

In the end, it becomes a matter of personal choice. In every contract decision, you must weigh what you stand to gain against what you stand to lose. Don't let another writer (or group) tell you what you must or must not do. Only you can determine what is best for you and your writing career.

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