In 1999 I asked Inklings readers: "Should writers sell all rights?" More than 175 readers responded, with answers that demonstrated just how complex this issue is. The majority were opposed to selling all rights, but many had mixed reactions, offering interesting and compelling arguments in favor of the practice. These issues and answers are just as important today as when the question was first asked.
Some respondents were confused by the meaning of "all rights." To understand the question, therefore, it's important to know exactly what selling all rights means.
When you write a story, article, or other work, you automatically hold the copyright to that piece. You do not need to register your copyright to "own" it (though this can be important if you must prove a copyright infringement). With that copyright comes a body of "rights" (or "uses") that you can license or sell to others. For example, you can license "First North American Serial Rights" to one publication, first electronic rights to another, First British Rights to a third, First Japanese World Language Rights to a fourth -- and so on. (For a more detailed description of the types of rights you can sell, see Rights: What They Mean and Why They're Important, by Marg Gilks.) You can sell the piece as a reprint, to an anthology, or even sell the movie rights.
If you sell all rights, however, you lose the ability to resell that material to any other publisher, ever. You can't sell it as a reprint, or to other countries, or even post it online on your own website. The publisher, however, can reprint or resell it at will -- without paying you another penny.
What you do not lose is your copyright. You are still the author, and the publisher does not have the right to claim authorship, publish the piece under another byline, or substantially alter (or change the meaning of) the material. All you have sold are the rights to that specific form of expression. This is what sets "all rights" apart from "work for hire," where you lose not only your rights to a piece but the copyright as well. (When a piece is sold as "work-for-hire," you transfer copyright to the buyer, who becomes both owner and "author" of the piece.)
With so much to lose, is there any reason in the world to do such a thing?
"Giving all rights to a publisher is like trusting an alligator not to eat you," said one reader. "It is just a legal way of 'stealing' material from the original author," wrote another. "Such a policy shows a fundamental lack of respect for the people who create the work which sells their magazines," noted a third.
New writers can be particularly vulnerable to demands for all rights. "Publications that demand all rights... constitute a high risk to less experienced (or less confident) writers, who may believe they have no choice but to give up the rights to their work if they want to be published," said one reader. "When you're new to the publishing industry, you don't understand how the things you do early on are going to affect you later, when you become more savvy and have more control of your career," noted another. "One never knows when one may elect to re-use an article or some other piece of creativity, and giving up everything seems like a bad move," another agreed.
Several recounted their own experiences and regrets. Theresa K. wrote, "I sold all rights to my first book because I was desperate to be published. The publishers did a wonderful job, the book looked great, but it was like giving a child up for adoption. Since its publication, the book has been reprinted several times and has sold about 50,000 copies; it is now packaged with a CD. Could I have sold it to another publisher? I don't know. Would I do it again? No, but I'm not as desperate now as I was then. Getting your foot in the door is hard. I don't regret my decision but I will always wish I could have retained an interest in something that was so much a part of me."
Cynthia M. had a similar tale: "There is a publisher in [my] city that produces educational testing material for school-age children. They pay $100 for all rights for 500-word reading comprehension stories. I wrote one story for them, received my pay, and decided never to do it again. I realize now that the story would have been perfect for a children's magazine I had published in before... But I can never use it again."
Several respondents pointed out that selling all rights imperils not only new writers, but all writers. As one noted, "It's crucially important not to post publications wanting to buy all rights. Doing so contributes to the erosion of writers' rights to their intellectual property. The more all rights are published as a condition for buying written material, the stronger the case builds for the buyers to plead that this is 'normal practice for the industry.'"
Another agreed: "I believe that we need to stick together to fight all rights contracts... Every time one of us undercuts the rate for a market or accepts an unfair deal like an all rights contract, she or he lowers the floor for all writers. When respected organizations like Inkspot take principled stands, it sends a powerful message to the industry that writers are professionals who understand their markets and expect to be paid fairly for their work. Please keep on sending that message."
While many writers were adamantly opposed to giving up all rights, others suggested a more cautious stand. Some felt that writers might have reason to give up all rights under certain circumstances -- so long as they understand the risks and tradeoffs involved.
The reasons most commonly listed for giving up all rights included:
1) Money. "When a writer needs the money, and when a particular piece of work would be hard to market again, an 'all rights' contract may make sense," said one respondent. Another wrote, "As a professional journalist of over a decade, I have on two occasions sold to publications like this because they paid me so well, and I knew I probably couldn't sell such a unique story anywhere else." Says a third, "I have been at this -- national publications -- for 18 years as a full-time freelancer. I have bought a house, car, supported my family. I sell all rights all the time. All this Tasini talk is great, but it won't feed the cat."
2) Prestige. Several writers noted that some of the "best" markets demand all rights, and that the value of being published in those markets outweighs the loss of rights. "Reader's Digest pays as much as $5000 or more for a full article, but the editors want all rights. For that kind of money and that kind of audience, I would probably be glad to sell all rights," said one respondent. Another noted that "In the children's field, some of the best markets want all rights. Highlights comes to mind, but I understand that they make a policy of paying authors for reuse although they are not legally obligated to do so. The Cobblestone group of magazines switched to an all-rights policy... I negotiated a higher fee, because I really like the publication and will continue to sell them work." Another pointed out that, "For academics, publication in 'prestigious' journals is so closely tied to salary that it is almost like getting paid for writing, albeit indirectly."
3) Specialized Markets. "When I write a TV script using someone else's characters, surrendering all rights is de rigeur," one reader noted. "But I would be very reluctant to surrender the rights to an original character. I remember too well the sad story of Joe Shuster and Jerry Siegel, who sold all rights to Superman for a pittance, and then lived in poverty while an empire was built on their creation." Another had a similar explanation: "I write about licensed products such as Buffy the Vampire Slayer and Pokemon. I don't expect 20th Century Fox to give me the rights to Buffy books; it's their creation and I'm just borrowing the characters, so to speak. Working for them has made a huge difference in my career and my bank account and never once would I have considered saying no over 'rights'."
4) Inability to Resell the Material. "Some articles have such limited resale value that the effort of remarketing them isn't worthwhile," said one writer. Another wrote, "I have published several articles in a major computer magazine, for which I've happily signed away all rights. The simple reason is that I really don't care to try to resell the articles... Also, the articles have a fairly limited shelf life, and I doubt I'd be able to find another paying home for them before they were out of date." Another agreed: "I give up all rights to the very specialized copy I write for... a nationwide newsletter for psychiatrists. Each article is carefully tailored to this particular newsletter. Since it's steady employment and provides something very unusual for a freelance writer -- a monthly check -- I don't have a problem with giving all rights to the publisher."
5) Getting Started. While most respondents felt that all-rights agreements tended to victimize new writers, a few felt the tradeoffs were worthwhile. "I don't think there's any harm in writing for all-rights publications when you're just getting started," said one respondent. "The experience and the clips are more important than the money. Once you've built up a good reputation for yourself, you have more power to get contracts revised, ask for more money, and pick and choose who you want to write for." Another noted, "When I was just starting out as a writer, I wrote for any publication, even if it took all rights. I couldn't afford to be picky -- I'm a good writer, but what publications really want to see is published clips. Gradually, I worked my way up (clip by clip) to better-paying publications."
Many readers felt that publishers who asked for all rights were grabby or lazy (or both). Most magazines, in reality, aren't going to turn your article into a movie, or issue a Braille edition, or sell translation rights overseas. Indeed, considering the dozens of ways one can slice and dice "rights," it's clear that most publications will use only a fraction of what they demand.
Fortunately, your choices aren't always limited to either accepting the contract or walking away. Here are some other options:
1) Negotiate. Some publications refuse to budge on all-rights contracts, but others are more willing to negotiate. One reader reported, "Last year, I wrote for two publications whose contracts asked for all rights. I challenged both contracts, and in both cases, had the contracts revised (in one case, the editor didn't really know why she was asking for all rights, but just figured she'd ask for everything just to be safe -- and she wondered why she couldn't attract better writers!)"
2) Ask to Keep Specific Rights. Why not reverse the tables and ask to retain specific rights the publisher can't use? These might include translation rights, Braille or audio rights, international or geographic rights -- and, of course, those ever- popular movie rights! By specifying the rights you want to keep (as opposed to those you want to sell), you may have more success in negotiating your way out of an all-rights contract.
3) Ask for a Return of Rights Later. I've employed this technique successfully on several occasions, when (as a more informed writer) I've wanted to reuse a piece I no longer owned. Often, once a piece has been published and gone "cold," a publisher will no longer consider it as important to retain all rights, and can often be persuaded to license those rights back to you. It never hurts to ask! (Be sure to get the return of rights in writing.)
4) Reslant the Piece. Even when you can't retrieve your rights, you can often use the same research to write a somewhat different article for a different market. Remember that you are only selling the rights to that particular written piece, not to the ideas or information behind it.
Our respondents made it clear that the question of whether or not to sell all rights can't be answered with a simple "yes" or "no." Too much depends on the circumstances, needs and goals of the individual writer.
With that in mind, many respondents urged Inklings to list all- rights markets and let readers make their own choices. As one person noted, "We're grownups. We can decide for ourselves whether terms are suitable for a particular piece. Why would you presume to know better for all writers in all circumstances?"
The answer is: We don't. However, while we respect a writer's decision to sell all rights, we do not respect the motivations of those publishers who demand them. Too often, writers sell all rights only because they perceive no other choice -- even when it is clear that the publication has no use for the vast majority of the rights they demand.
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