verba volent, scripta manent – words flee, writing remains
RIGHTS: WHAT THEY MEAN AND WHY THEY'RE IMPORTANT
© Marg Gilks
It's important to understand what rights you're selling or licensing away, not only to protect your interests, but to keep you out of legal hot water — or at the very least, save you the embarrassment of withdrawing a piece from one publication because you've already sold the rights you're offering to someone else.
Understanding rights can also help you make more money on a piece by — legally — reselling it again and again.
So, what are rights?
When you write something — be it an article, short story, book, even a letter — you automatically own copyright to that material. What you've written belongs to you. You don't have to fill out any forms or send away any registrations; the act of creation itself gives you copyright.
When a publication "buys your piece," you're not really selling it. You are selling to the publication only certain rights governing the use of your piece. In the absence of a contract or any stated rights, it's usually understood that you're selling "first" rights only, but it never hurts to make sure. This is your property you're dealing with here, after all. If a publication's writers' guidelines don't state what rights they purchase, you can state what rights you're offering to sell them, in your cover letter: "I am offering you FNASR on this article . . ."
"Ah, there's that cryptic FNASR again," you're thinking. "What the heck does it mean?"
FNASR stands for "First North American Serial Rights." When you sell FNASR, you are selling a publication the right to be the first one in North America to publish the material once. Then, unless you've granted other rights or licenses as well, all copyright to that material reverts back to you.
So what do you do, once the piece reverts back to you? Well, you can never sell FNASR to it again, obviously. But you can sell Reprint Rights to it; you can sell Anthology Rights to it; you can sell First British Rights, First European Rights, and First Australian Rights; if the publication that purchased FNASR was a print-only effort, you can sell First Electronic Rights to it, and so on. (One word of advice: save selling First Electronic Rights for last. Because of the universality of the Internet, if your piece appears there first, many publications will not consider purchasing other rights to the piece.)
Just don't ever sell all rights to your story, or it no longer belongs to you. Yes, that's what All Rights means — you are giving up any right to that piece. Should you decide to include it in an anthology of your works later on, you will have to request or purchase the right to do so from the publication that purchased All Rights from you.
Here are some of the rights that you'll see in writers' guidelines, and what they mean:
One-time Rights: just what it says — the publication is purchasing the right to print your piece once. This is not the same thing as First Rights. First Rights means the publication is buying the right to be the first to publish your piece. If they buy One-time Rights, they will be allowed to print a piece only once, but that piece may have already appeared elsewhere.
Reprint Rights, or Second Serial Rights: you have informed the publication that first rights for the piece have been sold; nevertheless, they can purchase the right from you to print the piece again, as a reprint. Or, to phrase it differently, the right to print the piece a second time.
It's important to note that many publications consider self-published material, or material posted to an author's web site, as previously published. Therefore first rights to this material cannot be sold to those publications. Check this with the publication you are offering the piece to.
First World English: the right to be the first in the entire English-speaking world to publish the piece. You won't be able to sell First American, First Canadian, First British, First Australian or FNASR if you sell this right.
A careful reader may realize by now that in some cases, it pays to think small. Sell First World English, and you've eliminated in one shot First Rights to every English-speaking country in the world. But if you first sell FNASR to that piece, you can then turn around and sell First British, First Australian, First European — rights for any geographic area that FNASR does not encompass. If you keep careful track of what geographic rights you've already sold, you can sell your piece around the world, one geographic area at a time.
This idea can be expanded further. You can also sell language rights to your piece. A publication may purchase the right to print your story or article in Japanese, German, Russian, or Spanish. These are often called Translation Rights: Spanish Language Translation Rights, and so on.
Non-exclusive Reprint Rights: the publication is buying the option to publish the piece again, as a reprint. Since this option is non-exclusive, this doesn't stop you from also selling reprint rights to the piece elsewhere.
Exclusive versus Non-exclusive: what does it mean when a publication wants "exclusive" or "non-exclusive" rights to something? When a publication asks for exclusive rights, they are asking that the piece not appear anywhere else while they are exercising their right to it. There is often a limit on the length of time a publisher will request exclusive rights — one month, three months, one year — and then that piece may appear elsewhere. Non-exclusive is just the opposite; Publisher A may feature your piece on their web site for a year, but because their right to do so is non-exclusive, you can sell the piece to Publisher B and have it appear elsewhere at the same time your piece is being displayed on publisher A's web site. Just make sure Publisher B doesn't want exclusivity!
First Electronic Rights or First World Electronic Rights: the right to be the first to publish the piece on the Internet, via e-mail, as a downloadable file or program, on CD or tape, etc. Another variation is Electronic Publishing Rights in the English Language, very similar to First World English, only limited to electronic media.
First Electronic Rights are separate rights that must be negotiated separately from FNASR — when you sell FNASR, you are not automatically selling First Electronic Rights in the deal, unless this is specifically stated.
Anthology rights: you are selling the publisher of an anthology — a collection of shorter pieces — the right to publish your piece in that collection. Anthologies often purchase reprint material. Many magazines that put out annual "Best of" collections negotiate anthology rights with authors whose work has appeared in their magazines.
Here's one that's becoming more and more prevalent on the Internet: "the right to archive" or "the right to make available" works on the Web. This means that the publication will keep your piece on file and accessible by visitors to that site, after its first appearance. As long as your piece is archived or being made available, it's considered "in print." Very difficult — and tricky — to sell rights to a piece being archived. If a web-zine wants the right to archive your piece, make sure it's for a limited length of time, only.
The "non-exclusive right to display, copy, publish, distribute, transmit and sell digital reproductions" means you are allowing your material to be sold elsewhere, by someone else. This does not mean that you will see any profits from these arrangements.
Similarly, if you do work-for-hire, realize that you are doing work for an employer, or working for a commission. The employer — be it publisher, book packager, or ad agency — owns the material you write under this arrangement. You have no rights to this material.
Excerpt Rights: this means that the purchaser can use excerpts from your piece in other instances. One example of this is the use of an excerpt in an educational environment. One author sold "ten-year non-exclusive excerpt rights" to his story so that portions could be used in a standardized test program.
It may be worth mentioning here that small portions of a work can be quoted — with proper attribution — in an article or essay by another author. This is termed "fair use." There are legal guidelines pertaining to what is regarded as "fair use," however, and these guidelines vary from country to country. If you intend to quote extensively, or would like to quote material whose use may be denied to outside parties, you should always ask permission from the original copyright owner.
There are as many rights as there are publishers to think them up, or situations that call for specific rights to be defined. Most can be deciphered with a bit of study. Here is one that may take some work: "the option for first right of refusal of publication of the Work, in whole or in part, in book form." This gives the publisher the right to purchase the story for their anthology at the same price offered by another publisher, or to refuse it and allow the other publisher to purchase the piece — they're requesting first dibs. Remember, if you're not sure what rights are wrapped up in this terminology, you can ask the publisher to define them.
Now that you know what rights are, and why they're important to you, pay attention to that next contract or agreement you're offered. Those are your rights you're signing away.
Marg Gilks is a writer and professional editor specializing in fiction. She's been working one-on-one with authors to help them prepare their work for publication for over ten years. Visit http://www.scripta-word-services.com/ to learn more about her editing services, manuscript evaluations, and FUNDAMENTALS OF FICTION, her 8-week e-mail course covering fiction-writing basics including point of view, showing instead of telling...all the way through to putting the final polish on your manuscript.
This article may be reprinted in its entirety (including bio) if you e-mail me for permission.
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