Wednesday, 20 May 2015

Guest post from Womagwriter Simon Whaley.

Simon Whaley is my guest today and he's kindly agreed to explain copyright. It is quite a long post, but please do take the time to read it if you're at all unsure about all the different rights. Whether we write as a hobby and only sub occasionally, or try to earn a living from our words, it's VERY important we understand this stuff.

Simon says - The womag market is ever-changing, and one area that continues to change is the contract womag writers are offered. Gone are the days when womags asked for First British Serial Rights.

As soon as we create something our creation is protected by copyright. It’s automatic. We don’t have to register it. (Things are slightly different in the USA, but that’s down to their legal system.) It’s the Berne Convention that explores the principles ofcopyright, which many countries (but not all) have signed up to. 

Owning the copyright in our work enables us to exploit our creation. It gives us the right to grant licences to others to make use of our words, usually (hopefully!) for some money! Once you give (or sign away) your copyright you no longer have the right to give others permission to use your work. The new copyright holder now has that permission. So never sign away your copyright, unless you fully understand the consequences.

Think Three!

As copyright holders, we license our short stories, and this license usually covers three main areas:

1) Media format (print, electronic, etc)
2) Region (Britain, Australia, Worldwide … I’ve even seen ‘The Universe’ used once!)
3) Time period (12 months, 18 months, exclusively)

The traditional First British Serial Rights we used to offer would give a magazine the right to be the first in Britain to print our story in a physical magazine (hence the word ‘serial’). Because we’d given them first British rights, we could also offer first rights in other countries at the same time (Australia, South Africa, etc). Until that magazine published the story in Britain, we couldn’t do anything else with it (in print format) in Britain. Once the magazine had published it in Britain, we could (in theory) offer another British magazine Second British Serial rights.

Publishing is Changing
But the world has changed. People read digital versions of magazines on their tablets and smartphones. Magazine companies HAD to change their contracts just to keep up with technology. They needed to ask for electronic rights, so they could legally use our stories in their digital versions of their publications. Magazine companies have also consolidated, buying other magazine organisations around the world, and their contracts now reflect this. It means we MUST understand what we’re signing up to when we sign a contract, because we’re legally bound by it.

It doesn’t help that some legal departments don’t fully understand their own contracts. Several years ago, I sent one contract to the Society of Authors (members can use their free contract vetting service), where I was told that the contract contradicted itself so many times it wouldn’t stand up in a court of law. (And this was from a well-known womag publisher.)

Untangling Clauses
One womag publisher asks for First Use With Extensions. This means they want to be the first to publish your story. (And as no region has been stipulated then they're asking to be the first in the World.) The contract goes on to explain that extensions means in any media format. So they may use their first right in print, or electronically, or in any other format they can think of. Usually, it’ll be print format, but the contract gives them the flexibility to use it digitally, or even on the back of a baked bean tin, if that’s what they wish.

This contract also asks for an 18-month exclusivity arrangement, which means the story can’t appear in any other format, anywhere in the World, for 18 months after the womag has first used it. (Note, that’s not 18 months after they accepted the story from you, but 18 months after they first published it.) Exclusive means just that - no one else can use that story … including you. So if you want to create an anthology of your short stories and sell that on Amazon, you can’t use this story in such an anthology until 18 months after the womag has published it. (At this point, I should clarify that this particular contract does say ‘without prior written agreement from the publisher’ - so, in theory, you may be able to do something before the 18 months is up, but you need the womag publisher’s written permission to do so.)

Consider the Contract As A Whole
Always read a contract in its entirety. For example, one womag publisher asks for First World Rights, which means they want to be the first in the world to print your story. That may seem reasonable. In theory, once they’ve published it in the UK, you can still offer first rights to another publication in another country. However, this particular womag publisher has a clause that says they also have the right to re-use your material (for free) in any other magazine owned by their company, anywhere in the world. At first glance this may not look too troubling. But suppose you sell First Australian Serial Rights in your story to an Australian magazine, giving them the right to be the first magazine in Australia to use your story, and then you discover that the British magazine has just used your story (for free) in one of their own Australian magazines? The magazine you’ve just sold First Australian Rights to, can’t now use those rights, because they’ve already been used!

Of course, if the British company doesn’t own any Australian magazines then you know you can safely sell First Australian Rights directly to an Australian magazine. But once you’ve sold a story, you have to be careful about where else you offer it to, to ensure you don’t break any clauses in the contracts you have already signed up to.

Moral Rights
You may see moral rights being referred to in a contract. Moral rights are those which give us the right to be recognised as the creator of the story. This is sometimes called the right of paternity, and means we should be credited as the writer, because this work is our own creation. Some contracts ask for the moral rights to be waived or removed. The reason for this is because editors sometimes rewrite stories. They may change the ending, or change characters names (because they have too many Janes or Traceys in this issue). Waiving, or removing, moral rights gives editors the flexibility to do this.

To Sum Up
This subject matter is too complex for a blog posting, and please remember, that I’m no legal expert either. But the golden rule should always be:

NEVER SIGN A CONTRACT UNLESS YOU UNDERSTAND IT IN ITS ENTIRETY!

And if you don’t understand something, then ask. No one will think any worse of you. In fact, and editor may respect you more for asking. It proves you’ve read the contract!

The Society of Authors provides a useful free guide to copyright andmoral rights (anyone can download a copy, it’s not just for members).
(PS, you don’t need to be a published author to join the Society. If you have had a ‘body of work’ published - such as articles, or short stories - then you may be eligible to join.

The National Union of Journalists also offer some basic advice about copyright.

The UK Government has some useful background information on copyright here

About Simon Whaley

Simon Whaley’s short stories have appeared in The People’s Friend, Take a Break, Fiction Feast, The Weekly News, Ireland’s Own and Woman’s Weekly Fiction Special. He’s published an anthology of short stories: Ten Teatime Tales.

More information about Simon can be found on his website.

17 comments:

Beatrice Charles said...

Wow, that's a bucketload of information to absorb. Thank you, Simon and Patsy. As individual writers we have no bargaining position other than not signing which means we don't get published and don't get paid. So it's Hobson's choice.
One point that stands out. Even if the publisher's contract is so full of holes that it won't stand up in court, are we prepared to be taken to court to fight the point? The big corporations can afford to pay lawyers who would tie us in legal knots.
So we may grumble but if we want to sell, then we sign. The important point, as you have emphasised, is to know what we have agreed to and abide by it.

Simon Whaley said...

Yeah, sorry Beatrice. Once I get started there's no stopping me!

But there's so much to say on this topic.

I understand your point about being the little guys, but we shouldn't write ourselves off, just yet. I had a similar issue with a photographic agency I deal with. They wanted to change the contract and sent us the revised version. Many individual photographers emailed the CEO explaining that they could not sign this new contract. Some even began proceeding to delete their accounts (withdrawing their images from the agency). In the end, the agency withdrew their revised contract and reviewed it, later re-issuing another contract which was much more acceptable. So the little guys can make a difference.

I would also re-itterate the benefit of being a member of an writing organisation such as the Society of Authors, the Writers Guild, or even the National Union of Journalists. We needn't be on our own.

Lindsay said...

A very useful post with clear information. Thank you.

Anonymous said...

Thank you, Simon. As a Womag writer who seems to spend as much time trying to figure out which publication I can safely send a story to, the information you've passed on is very useful.

Unfortunately, to be on the safe side, I find that once I've sold a story, I tend not to re-submit it. Wimp that I am!

Anonymous said...

Hello - this is a further comment. I don't even know of a magazine that buys First Australian Serial Rights any more. That's Life! and That's Life! Fast Fiction won't buy any story that's already been published in English so it's impossible to sell to D.C. Thomson and then That's Life!

Simon Whaley said...

Yes, Anonymous, I know what you mean. The change in contracts is having a huge impact on how we operate.

However, the important point is, you clearly understand what you can and can't do with a story once you've sold one to one of these markets.

Anonymous said...

HI Simon. It's me again. I agree completely that it's vital to know you have the right to re-sell a story. But it's difficult.

For example, is it possible to sell a story to Allas who buy First Swedish Rights if the story's already been sold to, say, DCThomson?

Simon Whaley said...

Hello Anonymous again!

The safest course of action would be to ask the editor you deal with at DC Thomson about Sweden. If DC Thomson have bought one of your stories, then they have First World Rights, so want to be the first in the world to publish. Once they've published, they've exercised that right.

It's the rest of the contract (as I understand it, and remember, I'm no legal expert) that could cause problems, because they have the right to re-use your story anywhere else in the world in any of their publications, for free.

However, they can only use Swedish Rights if DC Thomson own a Swedish magazine. If DC Thomson don't own a Swedish publication then they're not going to re-use your story in a Swedish publication, which means you could offer Allas First Swedish Rights, because Allas would then become the first in Sweden to publish this story.

But, as I say, the best course of action would be to ask DC Thomson. They'll soon tell you if they own any Swedish publications (which use short stories).

The Dc Thomson contract doesn't block all other markets. You just have to be careful how and where you approach other markets.

I hope that makes sense!

Linda King said...

Really useful - I keep meaning to take a look at the contract I signed!

Anonymous said...

Hi Simon,
Great article. One thing has confused me, I had been told, and seen on other sites giving copyright information, that First World Rights means that this takes away first rights from other regions, so for example First Australian Rights no longer are available (regardless of whether the original publication appears in other countries or not), only second rights can be offered any else in the world.
Had I been given incorrect information then?

Anonymous said...

Hi Simon,

Thanks so much for your explanation of the DCThomson/Allas question. I appreciate that you're not a lawyer but you've explained it very well. Thank you for your time.

Simon Whaley said...

Hi Anonymous,

Re your First World/First Australian Rights offered query, as I say, I'm not a lawyer, but my interpretation of such clauses has been 'First in the World' because, I think, that's what many publications want in practice. They want to be the first anywhere in the world to publish this story. (Indeed, many of the Australian mags used to buy stories published in the UK first, but they paid a reduced fee. They paid more for First Australian rights, if they also happened to be the first int he world to publish too.)

I have heard some people interpret First World as meaning the Developed World, and therefore excluding Third World countries!

But the best step to take if ever you're unsure is to to ask the editor who originally bought your story. (And keep the email reply, because if ever anything went awry at least you have something to explain why you took the action you did.)

Good luck!

Carolb said...

Thanks for the helpful post, Simon, and the useful links.

And I agree completely, understand what you're signing, and if you don't, ask.

Alan C. Williams said...

Thanks for all the info, Simon. The magazines I deal with seem to ask for Worldwide First Rights these days but I wasn't aware of the time period. Have to say I've spent a frustrating half hour trying to sign into to post this. One last try.
Alan C. Williams

Patsy said...

Alan, if the problem was with CAPTCHA or proving you're not a robot, you can just ignore that bit.

Alan C. Williams said...

No I've signed up to Google thingy although I won't do anything more with it. The captcha bit was so easy even I could do that.

Anonymous said...

Thank you Simon, & Patsy for hosting. Very kind of you to take the time to advise on what is a very tricky matter. Good wishes KH