Overview of Rights that Affect Writers

by Gloria T. Delamar

General Comment

Writers, especially unestablished ones, are frequently concerned about having their works stolen. Yes, it does happen, but the fact is that no reputable publisher would steal a work--and why would a writer send something to an unreputable publisher? Actually, most writers should be concerned that they themselves do not infringe on someone else's creation.

There's a saying that "in fiction, it's called plagiarism; in nonfiction, it's called research." This is an oversimplication, but notable. Plots are basically few, but the way the fiction is played out can be close to plagiarism if the author does not bring enough originality to the work. If a nonfiction writer uses someone else's findings, the information should be referenced, whether quoted directly or paraphrased.

"Do unto others' works as you would have them do unto your own."

Copyright Notices

Some writers put copyright notices on manuscripts they submit; this is a matter of choice, not necessity. Works written for distribution, such as handouts, frequently have a copyright notice on them. The usual form is "copyright © 20XX Writer's Name." The small "c" within a circle is the international copyright symbol.

Some writers mail a copy of a manuscript to themselves in order to establish a date of creation, and file the postmarked envelope unopened. This is not necessary. On the other hand, if you feel more comfortable by doing it, go right ahead.

Most book publishers copyright books in the author's name; writers should check book contracts to be sure they do not state that copyright will be in the publisher's name. Any wording- changes should be made before signing. It's important to retain book rights in your own name, as the copyright holder has the right to further use of the material, including reprint, performance, etc. (However, it's usual for a contract to spell out a division of reprint or excerpt remuneration. In the working situation, the publisher usually takes responsibility for selling reprints/excerpts and the writer then receives his/her share of the payment.)

Various "Rights"

All Rights

The law says that magazines and newspapers have the right to only one-time publication-use of articles they purchase. Many, however, still send contracts that state they are buying "all rights"; changes can be written in and initialed; some editors accept the changes as inserted and others rewrite the contract striking the all rights clause; some may refuse to strike the clause.

First Serial Rights

The term "serial" means publications that appear in a series, ie. newpapers and magazines.

Some writers like to put "Offered for First North American Serial Rights" (this covers the U. S. and Canada) above the estimated words in the top right of the title page, in order to give advance notice that they are not willing to sell all rights.

Portions of unpublished books, not previously in serial format, are also sold under "first serial rights."

Second Serial Rights

"Second Serial Rights" refers to reprints of published books, or to articles, short stories, or poems that previously appeared in another newspaper or magazine.

Simultaneous Rights

The term "Simultaneous Rights" applies to material sold simultaneously to publications which do not have overlapping circulations such as religious publications (holiday stories; general religious material) and newspapers (features; travel pieces; opeds). If you put the words "exclusive to your circulation area" in the upper right hand corner of your manuscript, it effectively gives notice that you're sending the piece to more than one publisher, but not one whose circulation overlaps. They understand this terminology and it enables you to sell the work to more than one publication.

Work-for-Hire

Some magazines still try to intimidate writers into a "work- for-hire" claus, which means the publication buys all rights. "Work-for-hire" is supposed to indicate that the writer is being paid to create the material as a staff writer and that the end result belongs to the company. Congress specifically addressed this concern and ruled that only true employees of publications could be classified under "work-for-hire."

Beginning writers, in particular, are at a disadvantage; it's important to get publication credits. Sometimes the decision must be to sell all rights. Many professionals refuse to submit work to publications with "all rights" or "work-for-hire" policies.

Miscellaneous

Ideas

Ideas cannot be copyrighted--only the specific way they are expressed can be protected.

Titles

Titles cannot be copyrighted. Famous titles, such as >Gone with the Wind<, have some "fair trade" protection. Writers are free to use titles that already have been used for other books, short stories, poems, etc. but should stick to obscure ones. (Occasionally, some "titles" are actually trademark-registered; if so, they generally appear with a small circled "T" at the end.)

Charts, calendars, mere lists, etc.

Charts, calendars, mere lists, etc. cannot be copyrighted. (Some lists are actually text--narrative exposition--thus subject to copyright protection.)

Letters

Letters have a special protection. The content of a letter belongs to the writer. The actual physical letter may belong to someone else, but the text, the written matter, cannot be quoted or published without permission of the creator. This is a little- known ramification of copyright protection; writers should beware of infringing.

Fair Use

"Fair use" is a term that covers quoted material. Despite the often-heard rule that 400 words are considered fair use, there is no law that stipulates exactly how much can be quoted. Though 300 words of a short poem would be an infringement, 300 words from a book might not be. Factors considered are the purpose and character of the use, nature of the work, the amount and substantiality of the use, and its effect on the market for the original work. The intent of the writer using the quote is also at issue. Works of literary criticism are given considerable latitude.

Electronic Rights

Electronic Rights govern publication on the Internet and World Wide Web. Actually, the same rights apply as those for print; the writer's work is protected. The fact that something is posted electronically does not place it in public domain. Also, writers should be further compensated and sign a release form if a print-magazine electronically re-publishes an original work of the author's.

For further information see the Copyright, Library of Congress Copyright Web Site or The Writers Bulletin Board which has several links to helpful information about copyright law.

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