Copyright and publishing law

This is a page devoted to all matters copyright and other legal concerns.

To see blog posts / mistakes related to copyright click here.

Know Your Contracts

This is an edited extract of an article I wrote several years ago for Freelance Market News, which I’m uploading today (19th November 2010) in participation and support of How Publishing Really Works’ Jane Smith’s Copyright Day. It covers copyright, licensing terms and syndication, and was written to advise writers confused by the contracts sent to them by magazines and newspapers following a commission or the acceptance of an article. I will upload it in its entirety at a later date, when I have time to update and revise it.

Copyright causes desperate confusion among writers, so let’s start with a definition and clear up some misconceptions.

Copyright is the ownership of – and right to profit from – work you create. As a freelance, everything you write is your copyright, and remains your copyright, until and unless you agree in writing to assign that copyright to someone else, such as a publisher.

If someone ‘steals’ or abuses your work (publishing it without your knowledge or consent or passing it off as their own and profiting from such), they are not stealing your copyright – they are breaching your copyright, and you would have cause to take legal action. Rest assured this is extremely rare.

Nevertheless, many writers ask ‘How do I protect my copyright?’ Mailing your work to your home address in a sealed envelope is not the answer. Submitting it at not unreasonable expense to a copyright registration service provider is not the answer either. Both of these approaches can only support your case legally in the exceptional event of a copyright breach.

The answer is not to sell it. An analogy the NUJ has used is to think of copyright as a house you own. People can squat in your house (or breach your copyright), but they can’t steal your house (or steal your copyright). But you can sell your house – and sell your copyright – by signing it away.

Normally, though, when you ‘sell’ an original article to a publication, you are only selling one-time use – or First British Serial Rights. Think of this as ‘renting’ your article out for, say, the month the magazine is on the shelf. The actual term is ‘licensing’. If rights terms are not discussed, or you are not given a contract, these are the usual ‘default’ rights. Copyright remains with you, and you are free to license other rights (Second British Serial Rights/Reprint Rights, Electronic Rights, Australian Rights etc) as you wish. Again, employing the housing analogy, the house still belongs to you, and at the end of the month’s lease, you can rent out your house again, to a different client. There may, though, be a time restriction to your reuse, as this clause reveals:

“The contributor agrees that [publishing company] will have exclusive use of the material such that the contributor will not allow further publication of the material for a period of 64 days following publication [publishing company]”

However, retaining your copyright is not always easy, because many contracts now request that you assign, that is sell, copyright to the publisher. This, in the industry, is known informally as ‘copyright grabbing’, and depressingly is becoming increasingly common:

“The contributor assigns to the [publishing company] the full copyright and all other proprietary rights in the product throughout the world.”

Some publishers have a ‘take it or leave it’ attitude to their contracts (if you won’t assign copyright, they won’t use you or buy your work), but some media organisations may be prepared to cede ground.

Think carefully before selling. Copyright is a valuable commodity. Assigning it to a publisher means you cannot reuse the material in its original form, because you’d be effectively breaching the publisher’s copyright. Granted, there is no copyright protection on facts, merely the expression of facts, so you could reuse your research to produce a fresh piece, but you would have to completely rewrite your article to avoid ‘plagiarising’ yourself.

‘All rights’, incidentally, is effectively copyright.

Licensing rights

Some contracts which do not require you to assign copyright may specify other licences which the publisher would like in your work, in addition to British Serial Rights, as in this Guardian Newspapers Ltd (GNL) example:

“Non-exclusive right to use, store, publish or transmit your contribution in internal and External Archives and databases including but not limited to CD-ROMs and websites published by us and/or third party database and/or archive publishers.”

Here, the newspaper is essentially requesting extra rights to publish your work on the Guardian site and store it electronically, but the ‘non-exclusive’ tells you that you are free to publish it, for instance, on your own personal website, or to license another on-line publisher to use the material similarly.

Other UK publications, perhaps with a foreign edition in Australia, for example, may specify first Australian serial rights, say. The more rights required, the greater your fee should be.

Be very wary of contracts which state ostentatiously that you retain copyright, but then go on to reserve all conceivable licensing rights, in all media (“presently in existance or not”), in all plausible territories (hilariously, the term “throughout the universe” is not unknown), and for all eternity. Although not copyright by name, this is effectively copyright in practice, as agreeing to this would leave you no rights to license and exploit and profit from yourself (but see syndication below).

Syndication

Syndication is the reselling of published work – the financial exploitation of unsold licenses. For instance, if you sell only first British Serial Rights in an article, you are free to sell licenses for all other rights – in other words, you can syndicate your article to America, Canada, New Zealand or wherever you choose, or in another medium, such as web rights.

You can only exploit these licenses if you retain copyright, of course. If you assign copyright to a publisher, it is the publisher who can license other rights in the work, and it is they – not you – who will profit from your work.

In between these two extremes, some publishers ask to reserve certain syndication rights, and sometimes will split monies with you. Again, this from GNL:

“Right to Syndicate for 3 months after use in the Licensed Publications and the non-exclusive right to Syndicate thereafter.”

You will be normally be told where your article appears, and payment will usually be made to you a month after the publication itself receives funds from the overseas publisher, but look out for any clause which says otherwise.

Note any period of exclusivity, which means you cannot syndicate your article yourself during that period, or at least not unless you obtain permission from the publisher to do so. Indeed, many rights departments at publishers, such as the Guardian’s, are quite approachable and may be able grant that permission for certain pieces of work. It’s not implausible, though, that they may require you to share your syndication fee with them, or ask to negotiate a deal on your behalf. Anyway, don’t be afraid to call.

On some contracts you may see reference to ‘lifting rights’. This is when international publishers, with whom UK publishers have fixed-fee contracts, can ‘lift’ or reproduce any articles originally published in the UK, in their own periodicals overseas. In this case, payment is not usually made to the writer, who is doubly short-changed by not always being alerted to where his article may be appearing, and therefore which licenses and rights have been exploited overseas.

Writing Competitions

(To see blog posts / mistakes related to competitions, click here.)

The August 2010 edition of Writers’ News led on my story of the current spate of travel competitions and blogs which reserve excessive rights – and sometimes copyright – on all material entered or uploaded. I will post an edited version of it here at a later date. In the meantime, read T&Cs carefully before entering or uploading work.

One of the competitions mentioned in my article was the ongoing Telegraph’s weekly ‘Just Back’ Travel Writing Competition. The terms and conditions state that copyright remains with entrants, but the killer caveat is that “each entrant grants a worldwide, irrevocable, perpetual licence to Telegraph Media Group Limited to feature any or all of the submissions in any of its publications, its websites and/or in any promotional material connected to this competition.” No mention of payment is made for these eternal, potential usages of non-winning entrants’ work in its publications or websites. Therefore, although you retain copyright and can do what you like with your article – so can TMG Ltd. For ever. If they use it, you’ll find it very difficult to sell it yourself.

Please contact me through my personal website if you come across any competition T&Cs which seem similarly unreasonable.

Photography Competitions

It’s not only writers who have to be careful with copyright. Photographers too. Here is an excellent article from The PhotoZone warning photography competition entrants to read T&Cs carefully before submitting work.

This essay from photographer Tony Sleep is a glorious, angry and devastating response to corporations who seek free images.

Pro-Imaging is an informal international network of photographers, which has had considerable success with its Artists’ Bill of Rights campaign, which sets out what it considers can and cannot be fairly obtained by competition organisers. Its website names organisers whose T&Cs Pro-Imaging considers to be both fair and unfair, and is an excellent resource for advice, information and statistics.

Last updated: 3rd March 2012.

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