Equipping Writers for Success
The Writing Life
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by Devyani Borade
Return to Rights, Copyright, Permissions & Plagiarism · Print/Mobile-Friendly Version
Until I read the contract.
"We would need sole publishing rights for whatever content you would be providing to our blog," the manager explained. "When paying for content, it is our policy that we must attain original content that has not been, and will not be, published on other sites or blogs."
What had floated my boat just a moment ago, now brought it to a grinding halt. All rights? I thought. Why?
Writers often hear "all rights" bandied about in contracts and assignments. One point of view for requesting (or demanding!) all rights is that posting non-original content to blogs can hurt their SEO ratings, because Google apparently penalises for duplicate content. "And if our readers see a post on our blog that they've already read elsewhere, it could look as though we've plagiarized it from the original publication," the manager added. So, would I be willing to give away unlimited exclusive all rights to my work?
If you've ever found yourself in this situation, think hard and don't be too hasty with either a yay or a nay. Exclusive all rights, when they are given, are for a limited period of time -- 4-6 months, a year and so on. Freelancers very rarely grant exclusive rights in perpetuity. Doing so means loss of future sales for the writer forever, which is why owning these rights does not come cheap.
However, if the remuneration package offered is generous enough to cover this cost, then why not? You are a writer, you can always write some more!
"Major fiction publishers," says Jo Crum, Assistant Chief Executive at The Society of Authors, "may want a grant of licence for all rights in perpetuity and to some extent this is fine, providing they are paying a good advance upfront, you are confident that they have the ability to sell the rights on, and there are good termination clauses dealing with breaches, liquidation, and a good definition of 'out of print'. "For academic and nonfiction publishing contracts, the terms are not as favourable as for fiction contracts, with royalties being based on receipts rather than the retail price," Crum adds. "If the work is part of a publisher-originated series, then they may very well want an assignment of copyright."
There are all types of writers in the world -- those who write volumes for pennies, as well as those who earn seven-figure sums from a single piece of work. The former end up hurting the whole trade. And, when the good writers start pulling out due to aggressive contract terms, it becomes a real possibility that the quality of writing in the entire industry then goes down. A contract demanding exclusivity is a no-win situation for the writer -- neither is he compensated enough for his work, nor is he afforded the chance to earn more in the future. It is for this reason that most established freelancers shy away from offering everything and the sun, unless the deal is worthwhile.
So if you are thinking of giving away all rights to your work, be sure to take the following points into consideration.
For those happy to offer all rights, consider:
For those unwilling to offer all rights, consider:
Don't be surprised if the amount of all the above adds up to a four- or five-figure sum. In my case, when I quoted my asking price in return for giving up all rights, the manager appeared flummoxed. "That price will not work for us," he said. Apparently a lot of other big names in the industry were happy to agree to their terms, so he was confused about why I wouldn't want to. While I understood his perspective -- and I thought both our positions were very similar in that we were both trying to protect our respective businesses -- I was in no mood to give in.
"I would always advise an author to retain film/television/stage/animation rights because publishers are not very good at selling these," says Crum. "Ideally any unexploited foreign rights would revert to the author if left unexploited after a period of time. This is quite rare to negotiate, but there is a move within the EU that contracts should be fairer in this respect. Authors could hop around this with shorter licences, but publishers will expect perpetuity. If an author is agented, he/she may very well retain certain or all foreign rights and the agent would sell these to their contacts."
If you've decided that giving away all rights is a bit too much and you don't want to yield, you can always try to negotiate your way to a compromise. When negotiating, use the following strategies:
1. Ask Why. Never be afraid to ask why the publisher needs to have all rights to the work. It may be that they have simply offered you a standard contract and not put too much thought into what they actually need. It may be that they have the same contract for every writer to keep their administrative costs down, so that they don't have to keep track of different terms and conditions for different contributors. It may be that, upon reflection, they find that they are not really using several of the rights they are requesting (like asking for print rights when they are, and intend to always remain, an online e-zine), and so are willing to modify their demands. Questioning encourages debate and discussion. Demanding and accusing only breaks down communication.
2. Don't Beg. You have a good piece that the publisher obviously wants to run. You get money, but so does the publisher, in the form of more subscribers and advertisers. It is a level playing field and in most cases, neither party has a grossly unfair advantage over the other. So when putting across your counter-offer, be professional and practical, not emotional and personal. Influence them, interest them, even agree with them when you can. You will portray yourself as a person who is willing to reach a mutually acceptable conclusion.
3. Don't Threaten or Intimidate Or Otherwise Antagonise with Aggression. You don't have to bully them into backing out. You can be just as persuasive by presenting facts politely and respectfully, and letting them draw their own conclusions. They've been in the business for a while, they know how things work. Don't be that "difficult" writer. Reduce conflict by offering sensible options to solve problems, not by being a trouble-maker. Be positive.
4. Don't Lie. Don't pretend to have another interested party that is supposedly just waiting for the chance to grab the piece. Also don't demand too much and then pretend to "climb down" to the terms you had wanted all along. These strategies can backfire and leave you high-and-dry with no deal and no going back. Define your "pain threshold", then stick to what is important to you and concede all else. Being honest doesn't mean you need to lay your heart bare. Let them have enough to reciprocate with trust.
5. Don't "Do or Die." It's not personal. Don't take it as an affront if someone asks for all rights. They are not all trying to undermine your sweat and toil. You can negotiate in parts. Offer to accept a smaller fee if they left you electronic rights, or offer another piece within a certain time period if they accepted non-exclusive all rights. Delivery times ("I'd like to hand in the finished piece two weeks later than usual"), guarantees ("I can guarantee this piece will generate at least 400 'likes' on FaceBook"), repeat business ("I have another piece along similar lines that I am sure will interest you"), methods of payment ("If you pay me via PayPal, I can offer a 5% discount") can all be valuable for you. This makes the negotiation process feel like it is making progress in increments, instead of a "take it or leave it" approach. That is called a "Zero-sum game". Put yourself above those kind of petty games. Let them have some wins. Co-operation and collaboration is the key. Don't react. Engage.
6. Quote Industry Standards. "Magazine/newspaper contracts are a different matter from fiction and non-fiction books contracts. Authors may be able to grant first serial rights, so that they are free to sell the article on elsewhere, but some magazines will want an exclusive licence and some may want an assignment," says Crum.
In my own personal database of the periodicals market, less than 3% of the viable/paying markets are recorded as requesting for all or exclusive perpetual rights or copyright ("work for hire"). The norm across the industry for periodicals appears to be for first rights, often including electronic and web archival rights. Put yourself in a strong bargaining position by claiming that you can offer the industry standard terms and conditions. This will shift the onus on the publisher to make a case for why they are the exception to the rule and how it is going to benefit you.
7. Read Between the Lines. Do your homework about the publisher and make sure you can see beyond the black-and-white of the contract. Understand their motivations. Are they asking for all rights because they have a poor track record of retaining talent? Do they appear financially sound, or are they requesting for more donations, inviting more advertising, running kickstarter (crowdfunding) campaigns, and making a lot of noise about any and every little thing? Getting the context and background can be a great point of leverage in the negotiations. The editor could be on a tight deadline and looking to fill a gap in the pages, or the business manager could have a monthly sales target to hit. Know what risks you and they are taking.
Be aware of your own expertise, be firm with what you want, be flexible with everything else, be realistic with your expectations, and be prepared to let the deal fall through.
My deal ended in a no-deal. But while I walked away from some big bucks, I did it with no regrets. When I sell all rights to my work, I'll be sure I do it on my terms.
This article is not available for reprint without the author's written permission.
Devyani Borade writes for magazines across the world. She has successfully negotiated higher payment rates for the majority of her articles and stories, and survived to continue writing. Visit her website Verbolatry at http://devyaniborade.blogspot.com to contact her and read some of her other work.