Five More Legal Issues All Writers Need To Be Aware Of: Rights, Royalties, Negotiating and more

Last month we looked at legal issues focusing on what you can and can’t write about, and what content you need to be careful about using in your writing. This month we’re focusing on legal issues that you should be aware of from the publishing side – rights, royalties, editing, vanity contract clauses, and negotiation.

1. What do publishers mean when they ask for specific types of rights?

Whether you’re selling a short story, a novella or a novel, there are certain terms that you should wrap your head around so you know exactly what you’re selling when you sign a contract or agree to terms in an email from a publisher. This list is not exhaustive, but it deals with the most common terms you’ll see in publishing contracts.

First rights: The right to be the first to publish the work. Once your piece is published — no matter whether it's on your blog, the web, or in print, your first rights have been given away. Some journals are lenient towards blog posting, but most take the conservative and legal view that blog posting is still publishing. First rights are very broad and have no geographical limit. First North American Rights is an example of geographically limited first rights.

Don’t forget that you are the one with the product that a publisher believes in and wants to sell.

Second rights: Essentially, reprints. Short story reprints generally sell for less money than original stories in literary markets (the exception may be anthologies by well-known editors), and many markets don’t purchase reprints or pay for reprints at all. You need to keep this in mind when shopping around for a home for your short fiction — in this sense it’s more logical to start off submitting your stories to pro-rate paying markets, unless you have strong feelings for a specific "for the love" journal.

Print rights: The right to distribute the story or article in print. Usually defined as either first print rights or second print rights. 

Electronic rights: The definition of electronic rights seems obvious, but if your contract doesn’t explain exactly what electronic rights entails, you might need an amendment to include a definition outlining whether it includes eBooks and/or the web.

Simultaneous rights: This is more relevant to writing non-fiction: it’s the right to sell your article to multiple places at once.

Rights in perpetuity: This means the right to archive your piece indefinitely.

All rights: You’re selling everything: print, electronic, worldwide – everything. Always be wary of agreeing to give these rights to an author if you don't quite know what it's going to entail.

2. Royalties clauses

Some short fiction contracts work on the basis of paying royalties to authors, rather than paying a lump sum per work of fiction or paying a per word rate. Earlier this year, there was an uproar about a magazine allegedly breaching its contract with authors in regards to payment. This became rather public due to an ex-employee of the magazine posting about it on internet forums not known for their civility or their discretion. Shortly after I found out about the scandal, I sent a fiction piece to the magazine. When I read the contract, I wondered if: a) the contract had been changed since the scandal, or b) authors simply had not understood the way the contract worked. The contract itself stated that royalties were only payable once a certain amount of copies of the magazine had sold. I have a feeling that people signing the contract seemed to gloss over this part and just noticed royalties and payment, and didn’t notice the qualification of quantities of magazines that needed to be sold before royalties were paid out.

If you are one of those authors who only sells stories for a certain level of payment, you should be aware that it can be almost impossible, particularly without knowing the magazine’s history of selling or figures, to determine how much you will receive in royalties or if you will receive any royalties at all.

Royalties clauses in publishing contracts for novels, novellas and/or novelletes should set out periods of times or dates when you receive royalties, and how the royalties are calculated (usually as a percentage of book sales). You need to check whether these royalties are calculated on a wholesale or retail price – obviously, the wholesale price will be a lot lower. A good, author-friendly contract will also include a well-drafted audit clause – this lets an author audit their publisher’s sales records. You need to be okay with who does the audit, where it takes place, what you can keep copies of, and how any discrepancies that are found are dealt with. While it’s better to have an auditing clause than not, it's prudent to check these basics are detailed.

3. Editing clauses:

For both short fiction and novel writing, you need to make sure that you're comfortable with any editing clauses and have the final say on what sort of editing by the publisher is acceptable. There are stories in the horror writing community about one particularly predatory editor who completely rewrites stories and has left many authors unhappy by inserting controversial and entirely new scenes into their short stories. Without an editing clause clearly outlining what the editor can and can’t change in your work, you have very little recourse if you are unhappy with what they do to your story once they’ve accepted it.

4. Vanity press contracts:

For those who are unaware, a vanity press publishes books at the author’s expense. Which is fine, if you know this is what you are in for, and it's what you want from your publisher. Some vanity presses are not particularly transparent and it’s only on reading a contract and noticing some nasty clauses that you might realize it’s a vanity press. What sort of nasty clauses should you keep an eye out for? Clauses requiring an author to pay production costs, print on demand clauses, and an absence of royalties clauses.

5. Negotiating as an author

It's unusual to need to negotiate a short story contract, from a time, cost and effort perspective, so it's best to only try and ask for clarification or negotiate important issues. Aside from being a lawyer and writing, I also work as an editor at an online literary journal. We have a two page contract, which I drafted and was at pains to ensure had similar rights and risks between authors and publishers to contracts at other magazines that pay semi-professional rates. When authors try to negotiate unnecessary changes to the contract, or try and haggle higher payment, it goes in the too hard basket. If a contract has unacceptable clauses, or issues that are left out,  (e.g. — the editor won't clarify a clause stipulating how the story will be edited), always feel free to discuss it, but if it can't be clarified, it may be easier to avoid working with that specific publisher.

Novels, novellettes, and novellas are another story. In these circumstances, you’re looking at a piece of work that should attract royalties. Don’t forget that you are the one with the product that a publisher believes in and wants to sell. If they are offering you a contract, they clearly believe in your work. If you’re not happy with some of the clauses, if you don’t understand some of the clauses, or you believe that some of the clauses don’t reflect the agreement between you and the publisher, don’t be afraid to ask about amending or deleting a clause. Agents work with contracts on a regular basis and will do this on your behalf (one reason why having an agent is beneficial to an author). If you have a good agent, you can trust that they can navigate their way around a publishing contract and will negotiate in your best interests. But without an agent, you need to have the confidence to ask questions about things you don’t understand and ask for changes to clauses that don’t benefit you or aren't fair to you. How does one negotiate? Explain what changes you want and why. If people don’t understand your reasoning for changes, they don’t have much motivation to change things for you.


Disclaimer: This column does not create a client-attorney relationship and is not intended as legal advice. Should you need any legal advice, speak to an attorney who is skilled in the area and jurisdiction you require. 

Jessica Meddows

Column by Jessica Meddows

In a previous life, Jessica worked for 12 years in the legal industry, with her last purely legal role being the corporate counsel for a property management company in Australia. Since then, she’s been the editor for an online literary journal and currently manages a music/tech start-up. She also freelancers as a contract lawyer and content producer, and writes regular columns for Litreactor and Gypsy Girl.

Jessica’s fiction and poetry has appeared in or is upcoming in Andromeda Spaceways Inflight Magazine (Aus), Beware the Dark (UK), Kaleidotrope, Plasma Frequency Magazine, and Pantheon Magazine.

She loves swimming, and like Peter Singer, considers herself a flexible vegan and focuses on the welfarist approach to animal rights.

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Comments

Sound's picture
Sound from Azusa, CA is reading Greener Pastures by Michael Wehunt September 20, 2013 - 12:01pm

Very informative, Jess. You managed to get me to soak up this legal stuff without my eyes glazing over. Great job! :)

voodoo_em's picture
voodoo_em from England is reading All the books by Tana French! September 21, 2013 - 12:08pm

Excellent article, Jess. Really helpful. Look forward to reading more :)

underpurplemoon's picture
underpurplemoon from PDX September 21, 2013 - 12:30pm

Does e-mailing your stories to someone privately mean that the rights are given up?

Mess_Jess's picture
Mess_Jess from Sydney, Australia, living in Toronto, Canada is reading Perfect by Rachael Joyce September 23, 2013 - 12:07am

@Matt and Em -- thanks so much for your support, as always. :)

@Jen -- Even though the definition of publishing changes between jurisdictions, I'll refer to the U.S. definition here in copyright law, given the prevalence of Americans on LR. If you check out the FAQs on the Copyright Office website at http://www.copyright.gov/help/faq/faq-definitions.html, publication is defined as:

“...the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display constitutes publication. A public performance or display of a work does not of itself constitute publication.

So the key concepts are distribution, the public and a sale, transfer or lending. So sending an email can consttute publication - this is distribution, but it would depend on who you are sending the email to (ie, the public element) and what the purpose is (ownership, lending etc).
Are you referring to a draft story you'd send to a friend for the purposes of workhopping? I wouldn't worry about it constituting publication in that case. 

 

jyh's picture
jyh from VA is reading whatever he feels like September 23, 2013 - 5:36am

[The internet is weird.] Does posting something online count as "distribution" or as "display"? If I tape a photograph to a street light, I have "displayed" it, but have I "published" it? I haven't, no matter how many people may walk by and see it. But then there are reblogs and sharing buttons, so it's not exactly the same as a photo. I suppose posting something in a forum where there is no reblog/share could be considered different from posting something on a blog where the sharing is built in to the design.

And RE the email question: If I send an electronic copy of a work to be considered for publication, I haven't given up rights. I haven't given up any rights unless I have accepted that it is going to be published. One specific person is not "the public" and there is no change in "ownership" if one specific person reads it one time at my request.

Dino Parenti's picture
Dino Parenti from Los Angeles is reading Everything He Gets His Hands On September 23, 2013 - 10:00am

Lots of good info here that I never really think over, so I'm glad someone's around to kick it back into my brain. I know who I'm emailing with questions when the time comes to sign book deals.