A Writer's Rights
Writers are often so enthused at the opportunity to see their work published they sometimes forget to protect their own rights. As a result, almost every writer has at least one or two “horror” stories about not being paid or an inability to republish their own work or having their work usurped by others. While the bargaining positions may not be equal and you still may do almost anything to see your work in print, if you know your rights at least you can understand what you are giving up.
Some writers are practically paranoid their work will be lifted, but the truth is copyright infringement of a writer's work is rare. Another misconception people have is the belief that it is necessary to file with the Library of Congress in order to copyright one's work. While you can secure a copyright with the Library of Congress, the fact is that once you write your work it has been copyrighted so long as three conditions are satisfied: the work is original; it is fixed in some tangible form; and it falls within one of the statutory categories of “eligible work,” which includes the work of most writers.
Ideas by themselves cannot acquire copyright protection. It is necessary to transform an idea into a tangible form. Nor can you obtain a copyright for a title, which explains why movies and books may have the same titles. However in rare instances, you can copyright a title if it has a unique meaning, such as Gone with the Wind which has been recognizable to generations of Americans.
Copyright protection emanates from the federal Copyright Act and applies to all fifty states. As the holder of a copyright, you have certain rights that prohibit anyone from using your work without your authorization, which include reproducing the work, making new versions of the work, and distributing copies. However, copyright law is complex. You should seek the services of a copyright attorney if you feel someone has infringed upon your copyright or you are concerned about violating the copyright of someone else.
Retaining Your Rights
Absent an indication to the contrary, it is generally assumed that when offering a work to be published you are representing that it has never been previously published and you are selling “first serial rights,” which allows you to retain the rights after the first publication. Should you have transferred “all rights” and subsequently want to include the work in an anthology or have it published elsewhere, you would need permission from the party holding the rights even though you are the writer of the work. If your work has been previously published and you are offering it for publication, you must indicate you are offering “one-time rights.”
The rights that are retained by the author and the rights that are sold to a book publisher are often the heart of the negotiations. The book contract will reflect exactly how the rights are divided and unless you have expertise in this area, it is wise for you to be represented by an attorney experienced in publishing law or by a literary agent.
How you are paid for a book is governed by the contract and is subject to negotiations. Once again, it is suggested you have representation. In most instances, an advance is paid at signing the contract that is credited against royalties earned. With traditional book publishers, authors are reimbursed by royalties, which is explained later in this chapter. Alternative publishing houses provide other means for payment.
Although more common with writers of fiction, writers of nonfiction do not always receive monetary payment for their work. Literary journals where you might send your essays sometimes pay in contributors' copies or provide a one-year free subscription. Some newspapers do not pay for opinion pieces or reviews.
Other than books, you are normally paid either when your work is accepted for publication or after your work has been published. Having no control over the publication date, you may have to wait months and sometimes years to receive payment if you are to be paid on publication. If you received an assignment, delivered the manuscript, and it was accepted but the publisher decided not to publish the work, you are often entitled to a “kill fee,” which is a percentage of what you would have been paid had the work been published. The amount of the “kill fee” is usually stated in the letter or contract offering the assignment.