One of the questions being raised repeatedly on a discussion board I participate on is the question of electronic rights. Should a magazine be able to buy a story and display it on their website in perpetuity without additional payment? Does it make a different whether or not it’s behind a paywall? If there’s no additional payment, when should rights revert? What happens with something like an anthology that is in electronic form and hence won’t go out of print the way a hard-copy edition does?
I’m presuming that most people reading this know that normally when you “sell” a story to a publication, what they’re actually buying is the right to publish it in a particular form. You, the author, retain any rights not spelled out in the contract. You can (and I encourage you to) sell the story again as a reprint, and you may want to look at forms like audio or in another language.
This is something that’s still very new, and it’s not something that’s been factored in when lists like SFWA-qualifying markets were put together. It’s not mentioned on sites like Ralan.com or the Submission Grinder. As a writer, though, you need to be aware of what you’re selling.
Take some time to skim through the contract and find out what the publication is buying. What’s the “exclusive period,” the period where they are the only ones that can print it? What forms are they planning to release your work in? Here’s a Columbia Law School resource that may be helpful in trying to decipher legalese.
If you’re publishing, how do you feel about perpetual rights? Is the horse already well out of the barn as far as that goes, or can writers push back on the practice of acquiring perpetual rights without payment?
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6 Responses
This is a great discussion starter, Cat! You’ve raised some excellent points that writers definitely need to be aware of when seeking publication.
Specifically in terms of the question “Should a magazine be able to buy a story and display it on their website in perpetuity without additional payment?”, a good option is a clause which grants the magazine the right to maintain the story in its archives indefinitely after the period of exclusivity unless and until the author requests its removal. This is a painless clause for magazines because very few authors actually ask to have their work removed, but it allows the author some flexibility if a reprint sale demands exclusivity or s/he decides an older work doesn’t represent his/her current persona and skill. This has served us well at Every Day Fiction, and seems to keep everyone happy.
I’m not sure about the feasibility of expecting additional payment for an anthology based on length of time in publication (since a really esoteric anthology might take a significant chunk of time to earn out its costs, never mind making any sort of profit), but I have recently heard of several anthologies offering bonuses or top-up payments at a series of predetermined sales goals or numbers sold “” insurance that the authors aren’t left out of the party if it does better than expected. We haven’t tried that yet, but I’ve been researching it as a model.
I also had an anthology editor not too long ago ask me (as publisher) to include a clause specifying the point at which the work would be considered out of print in all editions (including print-on-demand and e-book editions). It was no trouble to work out a minimum sales threshold to serve as that breaking point, and I expect such clauses will become more common in contracts going forward.
Thank you Camille! You’re absolutely right in pointing at the magazines that archive until the writer asks to have it taken down, I think that’s a great clause. Most of the time I leave stuff up in those places, because my philosophy is that those pieces are out there (hopefully) attracting some new readers. Can I ask what the minimum sales threshold you arrived at was?
We did some math around what it takes to keep a book in print and adequately promoted for a year, and then worked out an annual sales figure that would still cover those costs after royalties were paid out. I won’t go into actual numbers here (happy to do that via email), but essentially we are not going to lose money on a title in order to keep a claw on its rights.
Which is further complicated by some big publishers treating non-exclusive rights as de facto exclusive rights as well. Which means the stakes are a lot higher, and there’s a lot more pressure on people like Camille and I (who get what money we do on the long tail back end) to *not* be able to make our money back.
That said, I’ve currently settled on one year exclusive and four years non-exclusive (for a total of 5 years) as a compromise that everyone seems pretty happy with for anthologies.
That sounds like a reasonable compromise to me. What happens at the end of the five years, do people re-sign contracts?
When I have such a renewal clause (which isn’t always), it’s usually an auto-renew for one year increments past the first term, with all parties having an equal right to request the termination of the contract after that. Here’s an example from one of my templates:
https://github.com/uriel1998/ainkcontracts/blob/master/AInk_contract_author_book.md#term-termination-of-agreement-reversion