Understanding Rights and Copyright
by Moira Allen
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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For further protection, you can register unpublished works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
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
(For more information on this issue, see 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"
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
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
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"
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"
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.
For more information, see Writing-World.com's Rights and Copyright Links
Find Out More:
- Copyright, Public Domain, and the Wild Wild Web, by Moira Allen
- The Nitty-Gritty of Copyright, by Abra Staffin-Wiebe
- Rights: What They Mean and Why They're Important, by Marg Gilks
- Top Ten Questions About Copyright Permissions, by David Taylor
- Will an Editor Steal Your Ideas? - Moira Allen
Copyright © 2007 Moira Allen
This article may be reprinted provided that the author's byline, bio, and copyright notice are retained in their entirety. For complete details on reprinting articles by Moira Allen, please click HERE.|
Moira Allen is the editor of Writing-World.com, and has written nearly 400 articles, serving as a columnist and regular contributor for such publications as The Writer, Entrepreneur, Writer's Digest, and Byline. An award-winning writer, Allen is the author of eight books, including Starting Your Career as a Freelance Writer, The Writer's Guide to Queries, Pitches and Proposals, and Writing to Win: The Colossal Guide to Writing Contests. In addition to Writing-World.com, Allen hosts VictorianVoices.net, a growing archive of articles from Victorian periodicals, and The Pet Loss Support Page, a resource for grieving pet owners. She lives in Maryland with her husband and the obligatory writer's cat. She can be contacted at editors "at" writing-world.com.
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