One of the best feelings a freelance writer can have is when someone offers to publish the article, short story or novel that they’ve worked so hard on. It not only validates the writer’s talents, it helps them get one step closer to the goal of writing for a living.
Of course, book publishers and magazines don’t just print your work out of the kindness of their hearts. They are running a business, and with that business comes one legal matter that all writers should be aware of: Usage Rights.
When you agree to allow a magazine, publishing house or, in some cases, certain websites, to print or post your work, you will be required to give them certain Usage Rights to that work. This is a standard industry practice and you will be unable to get anything published if you refuse. What you do have some power over, however, is which Rights you choose to give up. There are many different types of Usage Rights, and you can decide which ones you are comfortable parting with and which ones you may want to fight to hold.
From the moment you finish an article, poem, story or any other written work, you automatically own all of the Usage Rights to that work. Copyright protection kicks in as soon as your work is “fixed in any tangible medium of expression…[which can be] perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine.” This means that once your work is more than just a collection of notes and ideas scratched on a piece of paper, you own the Usage Rights to it.
While you own all of the Usage Rights, they are each exclusive: you can hand one, some, or all of them over to a third party if you choose. This is how publishing works. The publication gets the incentive of original content and you get to make money off of your hard work.
Here are the Usage Rights that you should always be aware of as a freelance writer.
First Serial Rights
This is the most common Right, and the one you will always have to agree to in order to get published. First Serial Rights gives the publication the authorization to publish your work for the first time. Whether you sell your work to a newspaper, magazine, or any other type of periodical, you must allow them these Rights, or they will not be able to publish it.
Once you agree to give First Serial Rights, you may not sell or use your work again until it is first published by the Rights holder.
You retain all other Rights when you give up First Serial Rights, and the publication may not reprint your work again in any way without your permission. Sometimes, these Rights may be limited to certain geographical locations, like North America, for instance, and you may sell your work to another publication outside of that region.
These Rights allow a third party to publish your work only once, but they are Non-Exclusive Rights, which means you can grant them to anyone at anytime. You can grant them to one or one hundred publications at the same time.
These are usually sold to publications that are looking for content, but do not care if the First Serial Rights have already been used. Writers with works that can fit into a bunch of different niches can use One-Time Rights to get published in many different places.
Second Serial Rights
Also known as Reprint Rights, these grant a publication authorization to print your work after you’ve already given the First Serial Rights to someone else.
A publication will also ask for these Rights if they want to include your work in an anthology, such as a “Best of” collection that they will print. Most of the time, Second Serial Rights are Non-Exclusive, so you can grant them to whomever you wish as many times as you’d like, but some publications may ask for exclusive rights. Whether you grant them or not is up to you, but you may not get published if you deny them.
These include the Rights for a company to turn your work into a play, television series, or film. If you can, you want to do everything in your power to retain these Rights, because you can stand to make a lot of money from them. Instead of selling these Rights, you “option” them to companies.
When someone options the Dramatic Rights to your works, usually a novel or a short story, they pay you a percentage of the total cost, usually 10%. They then own the right to produce and market the project for one year. If they decide, after that year is up, that they no longer want to do the project, or if they just can’t continue for any reason, the Dramatic Rights revert back to you and you still get to keep the 10%. You are then free to option the Rights to anyone who wants them. If the company still needs time, they can re-option or pay the full price for them to own the Rights completely.
While having your work optioned into a television series or film is not exactly a common occurrence, you can sell the Dramatic Rights for upwards of $100,000, so even having the ability to option your work can net you a great payday.
Work for Hire Rights
These may be the most important Rights that freelance writers should be aware of. If you are hired to do a project for someone, they may retain Work for Hire Rights, which means that the work you do for them is not your own.
A good way to think about Work for Hire Rights is to imagine you work for a television series: all of the episodes you write are actually owned by the production company because you work for them. This prevents you from taking your work with you when you leave and selling it to someone else.
For freelancers, this means that anytime you are hired to write copy, the company retains the Rights. Of course, you can negotiate the Rights before you agree to any work if you feel you may want to do something else with your work down the road.
Giving up All Rights is exactly what it sounds like: you no longer retain any Rights to your work and if you ever want to again, you would need to buy them back.
If you sell All Rights, the owner can then use your work however they see fit. You are still the creator of the work — you may include it portfolios and such — but you may no longer make any money from the work.
Selling All Rights is a big decision and you should exhaust all other possibilities before doing so.
Archival Rights gives a website permission to “archive” your work so that it is accessible to visitors long after it’s been published for the first time. This is becoming more prevalent with the growth of the internet.
Allowing someone your Archival Rights can make it tough for you to profit from others, such as Second Serial Rights, because the work is already available to the masses. If you do give someone Archival Rights, make sure to set a time limit on them.
These are the final Usage Rights that freelance writers need to be aware of. Electronic Rights gives the holder the right to distribute your work on the internet, to store your work in a database, or to distribute your work as a downloadable file or even an audiobook.
These can be tricky because courts have ruled that if a contract does not specifically state who holds Electronic Rights, they will automatically belong to the publication. If you are concerned about your Electronic Rights, you should seek legal advice.
Many publications will have the Rights they will retain on your work posted in their submission guidelines. If they do not, you should ask about them before you submit any work.
Hopefully this post will help writers know more about their Usage Rights. It is not intended as legal advice, but rather as a guide to help them navigate the realities of having their works published.