Know Your Rights

Whenever you write something—whether it’s an essay, a poem, a film script, a speech, or a diary entry—all rights to it normally belong to you from the moment you create it. It’s no different from a quilt you sew or a birdhouse you build: if you make it, you own it.

However, there are two common exceptions to the “whoever wrote it owns it” rule:
1. If you write something as part of your job—or part of your role as an intern, apprentice, or volunteer—then all rights to your work belong to the organization where you work, intern, apprentice, or volunteer.
2. If you sign something called a work-for-hire agreement, then all rights to your work belong to the person or organization with which you made that agreement.

In many situations, a work-for-hire agreement is both reasonable and appropriate, so long as you’re paid fairly. For example, it makes sense for freelance publicists, speechwriters, advertising writers, and ghostwriters to sell their services on a work-for-hire basis. But it’s not reasonable or appropriate to sign a work-for-hire agreement to publish a memoir, a book of fiction, or a book of poetry. (The one exception would be if you were paid very well.)

In almost all other situations, you own all rights to everything you write, and you can sell any or all of them as you see fit.

The Five Dimensions of Rights

Publication and performance rights can be separated or combined according to five criteria: language, territory, medium, duration, and priority. For example, if you sell a piece to an internationally distributed English-language newspaper (e.g., the Washington Post, the Wall Street Journal, or the Manchester Guardian), it will typically buy first world English-language serial rights plus first worldwide English-language online rights.

Let’s unpack this legalese. The newspaper wants to publish your piece in its hard-copy version and on its website (media); because it’s published on a regular basis, it’s considered a periodical or a serial. It is available throughout the world (territory). And it wants to publish your piece before anyone else does (priority), so it buys first rights rather than one-time nonexclusive rights. Since it publishes only in English (language), it only buys English-language rights. However, were it to publish foreign editions in other languages, then it would buy parallel rights in those languages as well.

After you sell these rights, you of course own, control, and can sell the rights that remain. This means, for example, that you might sell the piece to a dozen other big-city newspapers (the Sacramento Bee, the Miami Herald, the Memphis Commercial Appeal, etc.). In each case you’d typically sell one-time nonexclusive serial rights plus nonexclusive online rights. You might also sell one-time nonexclusive rights to some magazines and/or websites.

All of this gets more complex with books, TV, feature films, and comic strips, where the relevant rights cover a wide variety of media and products. (Think of all the Dilbert-derived and Simpsons-related things you can buy, plus all the ways their characters are used in advertising.)

Exercise, Sell, Hold, or Return

When your friend Marketa tells you, “I just sold my novel to MacAdam Cage,” what she really means is that she sold that publisher a group of rights to her book—or, in intellectual property jargon, she granted MacAdam Cage a license to exploit these rights.

Let’s suppose that MacAdam Cage will publish Marketa’s book in North America in print and ebook form, thus exercising first North American English-language book and ebook publication rights. The remaining rights are collectively known as subsidiary rights or sub sights. For each of these rights, MacAdam Cage has four options: to exercise it (i.e., publish the book in the relevant medium, territory, and language); sell it to another company for it to exercise; hold onto it for future use or sale; or return it to you.

Why would a book publisher return some rights to you? Two possible reasons:
1. It feels it can’t sell or profitably exercise them.
2. It hasn’t sold or exercised them, so you’ve asked for them back, in the hope that you (or your agent) can sell or exercise some of them.
When I negotiate a book contract, I usually ask for a provision that permits the author to reclaim any unexercised, unlicensed rights at any time beginning three years after the book’s first publication.

Rights vs. Copyrights

It’s important to understand that intellectual property rights are different from copyright. Copyright refers to the legal protection a literary work receives; rights refer to intellectual property that can be bought, sold, and exploited.

When Marketa’s novel is published, it will be copyrighted in her name. But that tells you nothing about what rights she controls and which ones her publisher does. For example, Marketa might control overseas foreign-language rights, while her publisher might control overseas English-language rights and North American foreign-language rights. It all depends on what she and her publisher negotiated in their original deal.

Protecting Your Rights

Copyright law automatically protects all rights to every piece you write as you create it. (The exceptions are noted at the beginning of this article.) You don’t need to register the piece with the Copyright Office; indeed, you don’t need to do anything at all.

Once your piece is published, however, it needs to be registered with the Copyright Office in order to maintain copyright protection. Almost always, your publisher will automatically do this for you.

Relax and Pay Attention

Rights issues can be bewildering at first. But if you’re like most writers, over time—and with experience—you’ll get steadily more familiar and comfortable with them. It’s much like picking up a foreign language. (And sometimes rights discussions can sound like a foreign language: “Were you able to get 45-day pass-through after earnout?” “No, but I did get an arb clause and a much stricter OP definition that excludes POD.”)

You don’t need to roll up your sleeves and deliberately study rights issues; it’s enough to relax, pay attention, and learn through osmosis—and to occasionally read articles such as this one.

Comments

One Response to “Know Your Rights”
  1. James D Olson says:

    If you enter a competition, with various prizes awarded…does it mean I volunteered my work? If a person wins a competition, does it mean they were PAID for their material, even if it was a paltry sum? Does it mean by volunteering that you have to have a physical presence, or a significant amount of time involved?