3.1. I've HTML-ized my work for my Web site, but my publisher claims all rights to it and won't let me post it. (Natl Writers Union)
Description
This article is from the Natl Writers Union FAQ, by Vicki Richman nwufaq@vicric.com with numerous contributions by others.
3.1. I've HTML-ized my work for my Web site, but my publisher claims all rights to it and won't let me post it. (Natl Writers Union)
The copyright -- or all-rights -- grab has indeed become a
major beef for writers.
Copyright law assigns a copyright to the human author by
default. The author need do nothing to keep the copyright --
the author has to do something to lose the copyright.
To earn a living, the author typically sells -- or *leases*,
to be more precise -- certain rights to a publisher. The
various rights are defined by contract, not by law, but the
rights all derive from copyright law. That is, only the
copyright owner may sell or lease -- or simply define --
subsidiary rights to the copyrighted work.
Typically, a magazine writer sells "first serial rights" to
the publisher. That means that the magazine has the
exclusive right to publish the piece for the first time.
After publication, the writer may sell other rights to other
publishers -- or just post the piece on the Web.
Selling first serial rights worked well in the industry
until the computer and modem were invented. First,
electronic databases -- Lexis/Nexis, for example -- sold
magazine articles online. Both writers and publishers
squawked. Then the publishers realized that they could do it
themselves -- put their print articles into their own
databases or even into electronic magazines on propietary
services or on the Web.
Okay, that solved the publishers' problem, but, contrary to
their claims, a publisher is not necessarily the copyright
owner. The author, who is the default copyright owner, was
still not getting reimbursed. In fact, the author was not
even consulted, but typically found out about the electronic
infringement by chance.
The publishers fixed the electronic rip-off by running their
own chop shops, selling our intellectual property like used
automobile parts.
Finally speaking for themselves, writers replied that they
had sold only first serial rights. Only the writer, we
said, may use the article after it has been published.
Publishers answered that electronic distribution is merely
an extension of the print publication. It is not a new use
for the work, they argued. First serial rights excludes only
publishing the article in another print magazine, they
claimed, but does not exclude an electronic version of the
original print magazine. Whether that argument will stand up
in court remains to be seen.
But, wisely fearing that their argument would be held
specious by the courts, publishers began covering their
asses by offering new contracts to writers. Those contracts
changed "first serial rights" to "all rights, including
electronic rights or rights in any medium not yet invented."
Even worse, some publishers -- like the _New York Times_ --
made freelance writers sign work-for-hire contracts. That
means that the author surrenders copyright ownership to the
publisher. The owner does not merely sell all rights; the
author gives away ownership of the copyright entirely.
Work-for-hire contracts are particularly distasteful. They
use a loophole in the law. The work-for-hire sections of
copyright law were meant for salaried employees or for
writers under contract to produce technical manuals or
catalogs. Work-for-hire was never intended to include
journalists, essayists, and other creative freelancers.
So the suggestion that work-for-hire or all-rights contracts
are "common" misses the point. They may be common this year,
but they are exceptional in the history of publishing.
What can writers do? We can refuse to sign such contracts.
The National Writers Union has its own model contracts for
use by its members. We can insist on using an NWU contract
instead of the one our publishers offer. If enough writers
hold out, the publishers may agree to make NWU contracts
standard industry practice.
We can also ask for additional payment for any right beyond
first serial rights. If a contract pays $1000 for
work-for-hire, the writer may reply, "A grand is my fee for
first serial rights. I'll take another $150 for electronic
rights. Work-for-hire will cost you five grand."
The writer probably won't get more money for the piece, but
the publisher, who is really only interested in getting the
magazine on the stands, may agree to buy only first serial
rights. That is, the writer will retain all other rights for
the same fee.
(The figures cited are for anecdotal illustration only. No
union scale or standard rate is implied or should be
inferred. See Question 2.1.1 for a discussion of union
scale.)
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