Writing and Copyright, What Every Author Needs to Know
By Howard Richard Debs
A cautionary tale: as with most writers at all acquainted with the laws of probability and the vagaries of the literary world (think response time) I often send out work as simultaneous submissions, always checking to ensure the guidelines allow for this, always indicating such in a cover letter, and absolutely always promptly notifying publications of work accepted elsewhere and withdrawing submissions as is the protocol. Unless you assiduously follow this checklist, the blacklist will rightly follow!
Recently I sent out into the lit mag universe a series of pieces, specifically a trilogy of poems and received an initial acceptance, but for only one of the three related pieces. As I had indicated in my submission that each stood on its own merits, while I would have preferred otherwise, I quickly sent an appreciative email acknowledging my agreement to have this work included in the publication’s next scheduled issue. I then just as quickly notified the other publications to which I had submitted that the piece had been accepted elsewhere (another reason to keep a good record of what and where you submit) asking that consideration be given to the remaining work. I subsequently received an acceptance for both of the other two poems in the trilogy from another periodical.
As the time approached for publication of the first piece, and not having received word, I queried as to status of the issue in question. No reply. I followed up, and finally was notified that there had been an unavoidable delay but the proofs would be provided by such and such a date, which date passed with no such proof in hand. Further one way correspondence went unheeded; followed by frustration and concern on my part. I reached out to other contributors who also indicated a lack of response. Finally I contacted Duotrope (which listed this publication) and Submittable (which handled this publication’s submissions). Both attempted contact without success and advised me of this as well as in the case of Duotrope, their pending decision to deactivate the publication as of a certain date if the publication did not contact them.
After addressing with a friend the whole matter strictly in his capacity as a fellow poet, collaborator, and lit mag editor, (he also happens to be an attorney, albeit not an intellectual property attorney), I determined to withdraw the piece in question for “failure to publish the piece timely and failure to return communications.” It is important to note that there existed no signed written contract and monetary consideration while involved, had not been accepted (more about this aspect shortly).
I then proceeded to contact the publication which had so graciously accepted the other two poems of the trilogy and let them know that the final “piece of the puzzle” was available should they wish to avail themselves of it. They agreed, sending a note stating “very excited to have the Trilogy intact.” The moral to the story: know your rights.
As a former publisher and now as a contributor I have seen both sides of this equation. For example, in my consulting work for lit mags I recently recommended that a publication alter their rights agreement relative to a particular type of submission to allow the publication a subsidiary right they thought they had but didn’t. This whole area can get tricky especially with print lit mags that now have online versions, etc. So we need to ensure both authors and publications are on the same page so to speak.
First, while having stayed on occasion at a Holiday Inn Express, I am not an attorney. The basic information and suggestions here are offered as a practical guide, not legal opinion, when in doubt, seek such. Primarily this article is related to work submitted to literary publications online and in print. For most such circumstances use of customary standards should be sufficient. Since the focus is on that most relevant to publishing, important matters related to free licenses like Creative Commons or fair use doctrine will not be addressed.
Copyright is automatic. Once you write it it’s yours to reproduce, adapt, distribute, perform, and display. You can give permission (use rights) regarding any and all of these, and the devil’s in the details as will be further detailed.
I don’t, but many do indicate a copyright notice on their work to be submitted. This way no one can later say they didn’t know. If you use a notice, make sure it is proper, that is, include the word “Copyright” and the © symbol or at least the word “Copyright” plus the year and your name as author. The phrase “All rights reserved” is passé. There is some debate as to where to place such a notice; the upper right hand corner is as good as any. Be advised, editors may consider the notice a sign of naïveté.
I don’t, but some do, register their work with the Copyright Office prior to submission. This is mainly done to provide the option of bringing suit for infringement, and mainly done for longer works such as novels as there are nominal fees involved which can add up for shorter works, even though there are “group” registration options available. Publishers customarily handle the matter of registration as may be appropriate.
Now for most literary endeavors, essays, short stories, poetry and the like writers will with perseverance have the pleasure of sooner or later being confronted with an acceptance, most often delivered these days via email, from a publisher that has taken kindly to their work, asking that the author respond in kind.
It is important that this acceptance – and the response – indicate the pertinent specifics, the titles of the work in question, and particularly the intended issue and date of publication involved.
The other essential element of the acceptance and response should stipulate the rights requested by and being granted to the publisher. If not stated in the acceptance sent by the publication, refer to their general submission guidelines which should indicate this information, and add this to your response.
Most often as regards publication in lit mags first rights are what usually apply. This means you are granting the publication an exclusive first use of your work. Clarifying language in your response is advised in these cases; state first international rights, first serial rights, etc.
First North American serial rights (FNASR) is quite common, granting first rights to a serial, e.g. a lit mag, in the U.S. and/or Canada. While often not stated, the publication may assume this entails both any online as well as in print versions so it is best to specify both in the response if this is mutually intended.
A word about granting electronic rights. This is too broad a designation per se so try to delimit this to what is actually involved for example, first Internet use.
Once your work is initially published, opportunity may still knock. Some publications consider reprints, customarily including citing the original publication, constituting second rights or reprint rights. There can be one-time rights, granting publications the non-exclusive use of your work on a one time basis, say for an essay. The key factor is to state as clearly as possible what is the understanding of the parties involved.
A word of caution about work for hire. I was once asked to do a poem to accompany a photographic collage of mine accepted for publication. If you have been solicited to do a piece of writing for a publication, ensure that it is not construed as work for hire which relegates all rights to the publication, including copyright. In most cases this is not the intention, but better to be safe than sorry, so simply state that it is not such in your thankful agreement to do this type of commissioned work.
Now we have yet to mention “all rights” or the issue of payment, or the matter of written contracts. If you are dealing with a paying outlet, or a written contract, all the more reason to detail what you are giving for what you are getting. Remember accepting a payment is a substantive form of consideration regardless of the amount involved. Speaking of which, unless the amount involved is substantial, know that granting “all rights” is a fait accompli for the work in question putting it in the hands of the party receiving such a boon. All you retain is authorship. Every work has its price, but before considering relinquishing “all rights” make sure it makes “cents” to you.
Another tale of woe: I know someone who had a book published by a major press. The person in question thought the book contract included a time limited right of first refusal regarding future work. It did not but rather had a non-compete clause so worded that it basically stopped this person from publishing anything further in a broad subject category unless said publisher specifically granted prior written approval. Publishing agreements deserve their own discussion, perhaps in a future how-to. Granting the scope of this present explication, suffice it to say that from the writer’s perspective, as thrilled as one may be to finally get to the bargaining table, consider that is exactly where you are at, be governed accordingly, and don’t sign anything without careful scrutiny and consultation with others you respect and who are knowledgeable.
So send along your acceptance of the acceptance by all means and with dispatch, but also with provisos as appropriate. Indicate for example that you have withdrawn or will withdraw the work from consideration elsewhere if that is the case and that you are doing so and granting the rights noted in reliance on the work cited being published, within the time frame, in the issue referenced, etc. all as stated. Quid pro quo, finis ultimus.
Howard Richard Debs received a University of Colorado Poetry Prize at age 19; after spending the past 50 years in the field of communications with recognitions including a Distinguished Achievement Award from the Educational Press Association of America, he has recently resumed his literary pursuits, and his latest work appears or is forthcoming in Calliope, Big River Poetry Review, Jewish Currents, Poetica Magazine, Misfitmagazine, Eclectica Magazine, Star 82 Review, China Grove, Belle Reve Literary Journal, Verse-Virtual, Dialogual, Sediments Literary-Arts Journal, Piecemeal Review, Remarkable Doorways Literary Magazine, and Indiana Voice Journal. His background in photography goes back many years, both creative and technical, having been involved in management with the notable Wollensak Optical Company and his photography will be found in select publications. Website: communicatorsandcommunications.com