The Business of Writing: Minding the Details

An introduction to the financial and legal aspects of selling your writing, from 2000 Writer's Market

Find out more about the annual Writer's Market in our book section!

2000 Writer's Market edited by Kirsten Holm

Writers who have had some success in placing their work know that the effort to publish requires an entirely different set of skills than does the act of writing. A shift in perspective is required when you move from creating your work to selling it. Like it or not, successful writers, career writers, have to keep the business side of the writing business in mind as they work.

Each of the following sections discusses a writing business topic that affects anyone selling his writing. We'll take a look at contracts and agreements, the documents that license a publisher to use your work. We'll consider your rights as a writer and sort out some potentially confusing terminology. We'll cover the basics of copyright protection, a topic of perennial concern for writers.

Our treatment of the business topics that follow is necessarily limited. Look for complete information on each subject at your local bookstore or library, both in books (some of which we mention) and periodicals aimed at writers. Information is also available from the federal government, as indicated later in this article.

CONTRACTS AND AGREEMENTS

If you've been freelancing even a short time, you know that contracts and agreements vary considerably from one publisher to another. Some magazine editors work only by verbal agreement; others have elaborate documents you must sign in triplicate and return before you begin the assignment. As you evaluate any contract or agreement, consider carefully what you stand to gain and lose by signing. Did you have another sale in mind that selling all rights the first time will negate? Does the agreement provide the publisher with a number of add-ons (advertising rights, reprint rights, etc.) for which they won't have to pay you again?

In contract negotiations, the writer is usually interested in licensing the work for a particular use but limiting the publisher's ability to make other uses of the work in the future. It's in the publisher's best interest, however, to secure rights to use the work in as many ways as possible, both now and later on. Those are the basic positions of each party. The negotiation is a process of compromise and capitulation on questions relating to those basic points, and the amount of compensation to be given the writer for his work. A contract is rarely a take-it-or-leave-it proposition. If an editor tells you that his company will allow no changes on the contract, you will then have to decide how important the assignment is to you. But most editors are open to negotiation, and you should learn to compromise on points that don't matter to you while maintaining your stand on things that do.

When it's not specified, most writers assume that a magazine publisher is buying first rights. Some writers' groups can supply you with a sample magazine contract to use when the publisher doesn't supply one, so you can document your agreement in writing. Members of The Authors Guild are given a sample book contract and information about negotiating when they join. For more information about contracts and agreements, see Business and Legal Forms for Authors & Self-Publishers, by Tad Crawford (Allworth Press, 1990); From Printout to Published, by Michael Seidman (Carroll & Graf, 1992) or The Writer's Guide to Contract Negotiations, by Richard Balkin (Writer's Digest Books, 1985), which is out of print but should be available in libraries.

RIGHTS AND THE WRITER

A creative work can be used in many different ways. As the originator of written works, you enjoy full control over how those works are used; you are in charge of the rights that your creative works are "born" with. When you agree to have your work published, you are giving the publisher the right to use your work in one or more ways. Whether that right is simply to publish the work for the first time in a periodical or to publish it as many times as he likes and in whatever form he likes is up to you, it all depends on the terms of the contract or agreement the two of you arrive at. As a general rule, the more rights you license away, the less control you have over your work and the more money you should be paid for the license. We find that writers and editors sometimes define rights in different ways. For a classification of terms, read Types of Rights, below.

Sometimes editors don't take the time to specify the rights they are buying. If you sense that an editor is interested in getting stories but doesn't seem to know what his and the writer's responsibilities are regarding rights, be wary. In such a case, you'll want to explain what rights you're offering (preferably one-time or first serial rights only) and that you expect additional payment for subsequent use of your work.

You should strive to keep as many rights to your work as you can from the outset, otherwise, your attempts to resell your writing may be seriously hampered.

The Copyright Law that went into effect January 1, 1978, said writers were primarily selling one-time rights to their work unless they, and the publisher, agreed otherwise in writing. Book rights are covered fully by the contract between the writer and the book publisher.

TYPES OF RIGHTS

First Serial Rights. First serial rights means the writer offers a newspaper or magazine the right to publish the article, story or poem for the first time in any periodical. All other rights to the material remain with the writer. The qualifier "North American" is often added to this phrase to specify a geographical limit to the license. When material is excerpted from a book scheduled to be published and it appears in a magazine or newspaper prior to book publication, this is also called first serial rights.

One-Time Rights. A periodical that licenses one-time rights to a work (also known as simultaneous rights) buys the nonexclusive right to publish the work once. That is, there is nothing to stop the author from selling the work to other publications at the same time. Simultaneous sales would typically be to periodicals without overlapping audiences.

Second Serial (Reprint) Rights. This gives a newspaper or magazine the opportunity to print an article, poem or story after it has already appeared in another newspaper or magazine. Second serial rights are nonexclusive, that is, they can be licensed to more than one market.

All Rights. This is just what it sounds like. If you license away all rights to your work, you forfeit the right to ever use it again. If you think you'll want to use the material later, you must avoid submitting to such markets or refuse payment and withdraw your material. Ask the editor whether he is willing to buy first rights instead of all rights before you agree to an assignment or sale. Some editors will reassign rights to a writer after a given period, such as one year. It's worth an inquiry in writing.

Electronics Rights. These rights cover usage in a broad range of electronic media, from online magazines and databases to CD-ROM magazine anthologies and interactive games. The magazine contract should specify if, and which, electronic rights are included. The presumption is that unspecified rights are kept by the writer.

Subsidiary Rights. These are the rights, other than book publication rights, that should be covered in a book contract. These may include various serial rights; movie, television, audiotape and other electronic rights; translation rights, etc. The book contract should specify who controls these rights (author or publisher) and what percentage of sales from the licensing of these sub rights goes to the author.

Dramatic, Television and Motion Picture Rights. This means the writer is selling his material for use on the stage, in television or in the movies. Often a one-year option to buy such rights is offered (generally for 10% of the total price). The interested party then tries to sell the idea to other people, actors, directors, studios or television networks, etc. Some properties are optioned over and over again, but most fail to become dramatic productions. In such cases, the writer can sell his rights again and again, as long as there is interest in the material. Though dramatic, TV and motion picture rights are more important to the fiction writer than the nonfiction writer, producers today are increasingly interested in nonfiction material; many biographies, topical books and true stories are being dramatized.

SELLING SUBSIDIARY RIGHTS

The primary right in the world of book publishing is the right to publish the book itself. All other rights (such as movie rights, audio rights, book club rights, electronic rights and foreign rights) are considered secondary, or subsidiary, to the right to print publication. In contract negotiations, authors and their agents traditionally try to avoid granting the publisher subsidiary rights that they feel capable of marketing themselves. Publishers, on the other hand, typically hope to obtain control over as many of the sub rights as they can. Philosophically speaking, subsidiary rights will be best served by being left in the hands of the person or organization most capable of, and interested in, exploiting them profitably. Sometimes that will be the author and her agent, and sometimes that will be the publisher. Larger agencies have experience selling foreign rights, movie rights and the like, and many authors represented by such agents prefer to retain those rights and let their agents do the selling. Book publishers, on the other hand, have subsidiary rights departments, which are responsible for exploiting all sub rights the publisher was able to retain during the contract negotiation.

That job might begin with a push to sell foreign rights, which normally bring in advance money which is divided among author, agent and publisher. Further efforts then might be made to sell the right to publish the book as a paperback (although many book contracts now call for hard/soft deals, in which the original hardcover publisher buys the right to also publish the paperback version).

Any other rights which the publisher controls will be pursued, such as book clubs and magazines. Publishers usually don't control movie rights to a work, as those are most often retained by author and agent.

The marketing of electronic rights to a work, in this era of rapidly expanding capabilities and markets for electronic material, can be tricky. With the proliferation of electronic and multimedia formats, publishers, agents and authors are going to great pains these days to make sure contracts specify exactly which electronic rights are being conveyed (or retained).

Compensation for these rights is a major source of conflict between writers and publishers, as many book publishers seek control of them and many magazines routinely include electronic rights in the purchase of all rights, often with no additional payment. Alternative ways of handling this issue include an additional 15% added to the amount to purchase first rights to a royalty system or a flat fee for use within a specified time frame, usually one year.

COPYRIGHT

Copyright law exists to protect creators of original works. It is engineered to encourage creative expression and aid in the progress of the arts and sciences by ensuring that artists and authors hold the rights by which they can profit from their labors.

Copyright protects your writing, unequivocally recognizes you (its creator) as its owner, and grants you all the rights, benefits and privileges that come with ownership. The moment you finish a piece of writing, whether it is a short story, article, novel or poem, the law recognizes that only you can decide how it is to be used.

The basics of copyright law are discussed here. More detailed information can be obtained from the Copyright Office and in the books mentioned at the end of this section.

Copyright law gives you the right to make and distribute copies of your written works, the right to prepare derivative works (dramatizations, translations, musical arrangements, etc., any work based on the original) and the right to perform or publicly display your work. With very few exceptions, anything you write today will enjoy copyright protection for your lifetime plus 70 years. Copyright protects "original works of authorship" that are fixed in a tangible form of expression. Titles, ideas and facts can not be copyrighted.

Some people are under the mistaken impression that copyright is something they have to send away for, and that their writing is not properly protected until they have "received" their copyright from the government. The fact is, you don't have to register your work with the Copyright Office in order for your work to be copyrighted; any piece of writing is copyrighted the moment it is put to paper. Registration of your work does, however, offer some additional protection (specifically, the possibility of recovering punitive damages in an infringement suit) as well as legal proof of the date of copyright.

Registration is a matter of filling out a form (for writers, that's generally form TX) and sending the completed form, a copy of the work in question and a check for $20 to the Register of Copyrights, Library of Congress, Washington DC 20559. If the thought of paying $20 each to register every piece you write does not appeal to you, you can cut costs by registering a group of your works with one form, under one title for one $20 fee.

Most magazines are registered with the Copyright Office as single collective entities themselves; that is, the individual works that make up the magazine are not copyrighted individually in the names of the authors. You'll need to register your article yourself if you wish to have the additional protection of copyright registration. It's always a good idea to ask that your notice of copyright (your name, the year of first publication, and the copyright symbol ©) be appended to any published version of your work. You may use the copyright notice regardless of whether or not your work has been registered.

One thing writers need to be wary of is "work for hire" arrangements. If you sign an agreement stipulating that your writing will be done as work for hire, you will not control the copyright of the completed work, the person or organization who hired you will be the copyright owner. Work for hire arrangements and transfers of exclusive rights must be in writing to be legal, but it's a good idea to get every publishing agreement in writing before the sale.

You can obtain more information about copyright from the Copyright Office, Library of Congress, Washington DC 20559. To get answers to specific questions about copyright, call the Copyright Public Information Office at (202)707-3000 weekdays between 8:30 a.m. and 5 p.m. eastern standard time. To order copyright forms by phone, call (202)707-9100. Forms can also be downloaded from the Library of Congress website at http://lcweb.loc.gov/copyright. The website also includes information on filling out the forms, general copyright information and links to other websites related to copyright issues. A thorough (and thoroughly enjoyable) discussion of the subject of copyright law as it applies to writers can be found in Stephen Fishman's The Copyright Handbook: How to Protect and Use Written Works (Nolo Press, 1994). A shorter but no less enlightening treatment is Ellen Kozak's Every Writer's Guide to Copyright & Publishing Law (Henry Holt, 1990).

Reprinted with permission from 2000 Writer's Market, edited by Kirsten Holm © 1999, Writer's Digest Books. Not for reprint without express written permission of the publisher.

Return to the October 1999 issue of The IWJ.