Magazine Article to Book

Noddy Rider · Mar 3, 2007

Caution: this is one of those how-long-is-a-piece-of-string questions.

A major national magazine sent me a contract for a 2000-word article. The contract states that the article will be a work made for hire and the mag gets all rights.

The editor knows that I am writing a book (more than 65% written) on the exact same narrow topic and shopping for an agent. The article will be published long before the book (assuming the book ever sees the light of day).

Question: How do I keep my book from infringing "their" article? How different does it have to be? Can I use identical sentences? Paragraphs?

Any guidance would be appreciated. Thanks!

Noddy

Sassenach · Mar 3, 2007

I always wonder how people like you get assignments from national mags. Sorry if that's bitchy, but it's astonishing to me.

Can I use identical sentences? No.

Noddy Rider · Mar 3, 2007

Thanks for your help.

Eeman · Mar 3, 2007

Noddy,
I don't think there is anything wrong with your question at all. Since the editor knows of your plans, you might consider asking what they expect and if they can modify the language in the contract to allow for some overlap in your book.

Noddy Rider · Mar 3, 2007

Eeman - Thank you for your very helpful advice. That's why people like me -- inexperienced, uninformed, and unpublished -- come to AW.

AncientEagle · Mar 3, 2007

Sassenach said:
I always wonder how people like you get assignments from national mags. Sorry if that's bitchy, but it's astonishing to me.

No, I don't think "bitchy" is quite right for people like you.

Dantes · Mar 4, 2007

Noddy: Rights are always negotiable, but certainly you should be able to have the world rights or whatever to your material revert back to you in six months to a year. I've negotiated it down to three months before. ... Also, I see no reason why you wouldn't be able to excerpt material verbatim from book to magazine or vice versa if the topics are identical. Afterall you're the author of both. Good luck.

Mac H. · Mar 4, 2007

One way to think of it is that you currently have a body of work (interviews, notes, etc) called 'A'.

You are being paid (a work for hire job) to take some of 'A' and create an article 'B' that the magazine will own.

You are on spec taking some of 'A' and creating a book 'C'.

As long as you take the material for 'C' from 'A' and not from 'B' then you are fine.

Make sure that:
1. You are careful not to use parts of 'B' in 'C'. (Including sentences)
2. Make sure the editor etc who are paying you for 'B' knows about 'C', so there is no misunderstanding.
3. Make sure there is documentation of everyone's understanding.
(So if you've sent an email saying "Just so you know, I am already 60% through a book on this subject" and they reply "OK" ... then keep that email)

Good luck !

Mac

johnrobison · Mar 4, 2007

Noddy Rider said:
Caution: this is one of those how-long-is-a-piece-of-string questions.

A major national magazine sent me a contract for a 2000-word article. The contract states that the article will be a work made for hire and the mag gets all rights.

The editor knows that I am writing a book (more than 65% written) on the exact same narrow topic and shopping for an agent. The article will be published long before the book (assuming the book ever sees the light of day).

Question: How do I keep my book from infringing "their" article? How different does it have to be? Can I use identical sentences? Paragraphs?

Any guidance would be appreciated. Thanks!

Noddy

First of all, without meaning to be insulting, the second person asked why people like you get contracts at all. I lloked at your profile and saw nothing. Is there something I didn't see that's "more to the story?"

Next, to the question itself.

If you truly believe you are going to publish a book, you should not sell an article on that topic as work for hire to anyone. You do not want to realize next year that the wonderful passage that you wrote in that article belongs to someone else and can't be included in your book.

You don't want to write a book then have the magazine people reprint the article and say "this was the basis for xxx's book . . . ."

If the topic is being covered by a book my advice is to sell them what's called first serial rights - the right to print the article - and nothing more. If that's not acceptable, I'd pass on them.

Noddy Rider · Mar 4, 2007

Thanks to all. I'm going to talk with the editor and see what we can agree.

As for me personally, I didn't see the need to bore you with the details. But since you asked:

I'm just an ordinary person (not an experienced writer) who had a crazy idea to write a book. I entered a contest and didn't win, but the senior editor liked my idea. We met, kept in touch, he reviewed my book proposal, and then asked if I wanted to write the article.

I'm fully aware that it's a breathtaking leap for "people like me" to get their first article published in a major publication. I don't want to pass because it would add a lot of height to my current inch-high platform.

As for the book, two agents have offered to represent me, but I am trying to hold out for one with a better track record of sales.

Thanks again for your comments.

aka eraser · Mar 4, 2007

Chiming in late here but I'd definitely try to get the contract modified. At the very least, I'd try to get them to accept a clause allowing you to use the article in a proposed book in exchange for a credit. Ideally, it would be nice if you could get them to accept traditional first rights.

I truly detest the whole work-for-hire concept and wish it would just go away. It won't though, as long as writers are willing to accept it. I'm concerned that you described your topic as "narrow." It's conceivable (albeit unlikely) that the mag could spin off your article into a book or movie themselves, as they'd own it under the original terms you've discussed.

Good luck.

ETA: the "albeit unlikely" part.

Noddy Rider · Mar 4, 2007

Thanks for more input, aka eraser.

Ideally, which is the better deal for me? Sell them first serial rights or world rights with a reversion?

To muddy the waters further, they have an online version of the magazine. Before I got the contract, when I asked the editor if my article was for the print version or the electronic, he said the former. But the contact is so broad ("all rights ... throughout the world in perpetuity") that it gives me pause.

Also, the contract includes a warranty by me that the article has never been "published or presented." Does this mean I can give presentations on the topic, provided I don't merely read this article to the audience?

Thanks again to people like you who are so willing to help people like me.

Silver King · Mar 4, 2007

Noddy, just negotiate what you want to sell. I went through the same thing with a national pub, and in my case, what I sold was their right to publish my work, though I retained the rights to use the piece in my book. All it boiled down to was that I didn't sell all the rights to the story. And the publication was very accommodating to my desires, which were spelled out in the final draft of the contract.

Don't be afraid to ask for changes, in particular, if they may affect something you'll want to use as part of a larger work.

Good luck.

aka eraser · Mar 5, 2007

First serial rights would be ideal but anything that reverts rights back to you within a reasonable timeframe would work.

I don't know that online posting would hurt you much. It may raise that inch-high platform you were talking about another centimetre or so.

The warrant they want is boiler plate stuff and simply means that the article you're preparing for them is original and hasn't appeared before in any media, including a spoken one. It has nothing to do with what you can, or can't do after the article is published. (Other language in the contract covers that.) They just want you to swear it's brand, spanking new.

Noddy Rider · Mar 5, 2007

"Things keep getting curiouser and curiouser." -- Alice in Wonderland

"When the going gets weird, the weird turn pro." -- Hunter S. hompson

In other words, had I known what I was getting into with this whole writing biz, I might have kept that book locked up in my head for perpetuity ...

I've asked the editor for a "can-we-tawk-here" meeting. I have a feeling that The Big Magazine is not going to yield much to the Writer With a Miniscule Platform. But I'll give it my best shot and keep you posted.

Noddy Rider · Mar 6, 2007

Response from mag

National Mag offered to amend the contract to say: "all rights, except rights for the material in a future book."

I said, like, can't we do first serial rights or like, rights reverting to me.

National Mag said "Our contract is just saying that the writer can't take back what they do for us -- that it's our property. We're not saying that you can't use the material somewhere else. I was just suggesting that language so that a book publisher wouldn't need to worry about it. There is no way that legally we can prohibit you from using the material elsewhere. And besides, [National Mag] would never do that. The only problem we would have is if you turned around and submitted the exact same article for publication somewhere else. Our columnists, for example, use the material they write for us in books all the time."

What do you think?

Silver King · Mar 6, 2007

Noddy Rider said:
National Mag offered to amend the contract to say: "all rights, except rights for the material in a future book."What do you think?

Isn't that what you want, Noddy? It sounds like they're protecting their rights to publish your work without competition. Then you retain the rights to reprint the story in book form.

It's precisely what I mentioned upthread, which worked for me.

ATP · Mar 6, 2007

From my perspective, and to answer you directly, 'all rights' is not the language you should be signing to. It is too broad, and merely reflects many (though not all) publishers' more pernicious side.You are right to seek to nut out the specific rights that they want and that you are assigning them.

I make this point repeatedly to all newbies - go and learn the nature of legalities governing publishing, it is time well-spent, necessary, and will serve you well in the future. I have had to do so from practical experience, and with one of my recent magazine publishing firm clients,
I ended instructed them on the finer points. And this company has been in business for around 25 years.

I had developed a page containing resources on publishing legalities/contracts and other issues. You will find it at the following link:

http://www.absolutewrite.com/forums/showthread.php?t=51315

I urge you to send a note to this forum's moderator requesting it be posted as a sticky if you feel its information is helpful to you and others.

aka eraser · Mar 7, 2007

If I'm reading the editor correctly, it sounds like his intent doesn't reflect the language of the contract. He's saying, in effect, "Just because you're signing away all rights to us doesn't mean we'll do anything else with them." He may be as good as his word but he also may not be the editor there next year. He's also not the biggest cheese in the grocery. He answers to (at least) the publisher.

He may well not give a good goshdarn what you do with the piece after it appears in his mag. The problem is, legally, your use of it is limited to whatever "excepts" you can get him/them to agree to in writing. If you can live with the "except for a proposed book" clause then go ahead and sign it. If you want more, you really should try to get the contract altered to reflect that.

I'd like to get Jaws to weigh in on this if he's around. I'll send him a PM.

Jaws · Mar 7, 2007

I can't give specific legal advice here, but there's a serious logical contradiction in what has been described. In message 1, Noddy Rider says

A major national magazine sent me a contract for a 2000-word article. The contract states that the article will be a work made for hire and the mag gets all rights.

This makes no sense to me, as a WFH automatically takes all rights. Until this gets straightened out, I can't even begin to venture any guideline other than "see if you can negotiate."

That said, AKA Eraser's comment that "he also may not be the editor there next year" is a good reason to never trust someone's oral interpretation that a contract means something less (or more) than it seems to... especially if that someone has an interest in the contract. The whole point of a contract is to allow a business transaction to proceed as it was actually intended if all of the relevant people drop dead the moment the ink is dry. Particularly given the publishing industry's less than sterling reputation for honesty and clarity in its business dealings, one simply cannot rely on any editor's interpretation of a contract. The editor may well be right; the editor may well be in good faith; and a court won't care.

tombookpub · Mar 7, 2007

In your attribution, could it be indicated that this an excerpt from a planned book by you. I've seen references like this before in mags.

Noddy Rider · Mar 7, 2007

ATP - Thanks for the links. It's even more helpful that they are written to advise publishers, not authors, so I've got a better idea of what rights the pub wants to get for itself.

Thanks to the big fish - AKA and Jaws. I see now that I would be dead in the water because the contract as drafted specifically says that the article is considered a work made for hire. The article fits the definition of WFH because I'm an independent contractor, it's been commissioned for use as a contribution to a collaborative work, and we've agreed as such in writing before I created it.

So is my best case scenario to get them to strike the WFH language, and agree that I am licensing (not assigning) rights to them which will revert back to me after X period of time? Or first serial rights?

You're absolutely right that if it's not in the contract it doesn't count (I'm a recovering attorney also but obviously not an IP expert). The red flag for me was "National Mag would never do that."

Tombookpub - You're right, there may be a notation trumpeting my forthcoming book, but that's just commentary outside of the contract.

More thoughts? Thanks, you guys are saving me from myself.

Noddy Rider · Mar 11, 2007

UPDATE - The editor said that it was all rights or no rights: "Not only do we never accept first rights, no national magazine I'm aware of does that." So it was a dealbreaker.

He had offered putting an acknowledgment in the work for hire contract that they were aware I was going to write a book using the material. I said that was like getting married and swearing to be faithful while acknowledging that I'd have an affair.

Lisamer · Mar 11, 2007

The other possibility is to reference yourself in your book: "In my article in such and such magazine, I said such and such."

K1P1 · Mar 12, 2007

I think I don't really understand the problem. I write on the same topics for publication in magazines and in my books. It's not the content but the expression of the contents (i.e. the exact wording) that's copyrightable and that you sell the rights to. Unless you are planning to take a chunk of your book and submit it to the magazine or you're planning to take the magazine article and reprint it in your book, there shouldn't be a problem. If you write fresh material, using different sentences, organized in a different way, then there shouldn't be any overlap between what's published in the magazine and what will eventually be printed in your book. The information you are presenting may overlap, but the expression of it should be different.

I have found that the way I need to present content in a short standalone article is significantly different than the way I present it in book form, so I have no difficulty in writing the material differently.

Magazine Article to Book

Noddy Rider

Sassenach

5 W's & an H

Noddy Rider

Eeman

Noddy Rider

AncientEagle

Old kid, no need to be gentle.

Dantes

aka Greg

Mac H.

Board Visitor

johnrobison

A Free Range Aspergian

Noddy Rider

aka eraser

Fish Whisperer

Noddy Rider

Silver King

Megalops Erectus

aka eraser

Fish Whisperer

Noddy Rider

Noddy Rider

Silver King

Megalops Erectus

ATP

What happened to my LIFE?!

aka eraser

Fish Whisperer

Jaws

Apex Predator

tombookpub

Nonfiction writer

Noddy Rider

Noddy Rider

Lisamer

K1P1

Procrastination is its own reward