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Thread: Question about rights

  1. #1
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    Question about rights

    I sold a number of short stories to a publisher several years ago. There was no contract, just the one-time payment. These stories have been available for sale from their website ever since. But now I notice they have compiled a book of my stories and are selling it on Kindle. I feel that I'm entitled to royalty payments on this book. I didn't sign away my rights, in fact, I didn't sign anything at all. Could anyone tell me what my legal position is?

  2. #2
    crazy mean SuperModerator Old Hack's Avatar
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    We can't tell you what your legal position is here, because we don't know it.

    Even if there wasn't a formal contract involved, there will be some form of agreement. You'll have to check the emails and/or letters you exchanged with the publisher at the time, which should give you a few clues.

    Your best bet is probably to contact the publisher, and tell them of your concerns.

  3. #3
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    If there was no contract, no agreement in writing or e-mail, no obvious guidelines stating that you sold specific rights, there is no doubt that you're getting screwed. The one rock solid part of law is that you only sell named rights. But if you don't sign away rights, you still own them.

    Contact the publisher, and then, if they can't produce anything that shows you did, indeed sell rights, then you didn't. At that point, you'll need a lawyer.

  4. #4
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    Thanks for the replies. I sold the stories around 10 years ago, so I no longer have the emails from that time. But I do remember clearly that there was no agreement of any sort. They'd simply say that they'd accepted the story and would send me a cheque.

    I did query them some time ago about rights, and was told I would be free to market the stories elsewhere when they were no longer in their catalogue. But the problem is they have no intention of EVER removing them from their catalogue.

    I just think that for a one time payment, no contract, and nothing signed, I've been -- as James said -- screwed! Of course, I'd just started writing then, seriously that is, and didn't know dickety about the thorny world of publishing.

    BTW this involves some 18 stories, each one around 6,000 words long, and a 41,000 word novella. So this is a sizeable collection of work, and that's why I'm concerned. I received about 15 cents a word for the stories, and they've been selling them on their website for around $10 ever since. Now they've made them into a book that they're selling on Amazon. I must admit I was pretty shocked when I saw it.
    Last edited by Cavalcade; 01-25-2013 at 02:10 AM. Reason: Added more explanations

  5. #5
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    Write them again with a cease and desist letter. Tell them to produce a signed contract granting them anything beyond first rights, or the next letter they receive will be from your attorney.

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    Quote Originally Posted by Jamesaritchie View Post
    Write them again with a cease and desist letter. Tell them to produce a signed contract granting them anything beyond first rights, or the next letter they receive will be from your attorney.
    Thanks, James. I'll do that. I have another publisher who defines "first rights" as 3 months, and then I'm free to do what I like with the stories. They do keep the stories on their site after that, but as free reads, they don't charge for them.

  7. #7
    crazy mean SuperModerator Old Hack's Avatar
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    Quote Originally Posted by Cavalcade View Post
    Thanks, James. I'll do that. I have another publisher who defines "first rights" as 3 months, and then I'm free to do what I like with the stories. They do keep the stories on their site after that, but as free reads, they don't charge for them.
    "First rights" don't renew themselves after three months. There can only ever be one first time for anything, and that includes publishing. The publisher in question might acquire first rights and relinquish rights to your work after three months are up, but that doesn't mean you get first rights back: they're gone for good as soon as the work is published.

  8. #8
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    It's my understanding that if no agreement or contract is signed then all rights remain with the author. An original payment for a story does not give the publisher the right -- unless something was signed -- to sell it for years.

  9. #9
    crazy mean SuperModerator Old Hack's Avatar
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    Sometimes you can assign all rights in your work to a publisher simply by using their online submissions form.

    You have to check what you're selling before you sell it.

    Why don't you try contacting the publisher again? Or, if you're a member of an organisation like the Society of Authors, contact them and ask for help.

  10. #10
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    Quote Originally Posted by Old Hack View Post
    Sometimes you can assign all rights in your work to a publisher simply by using their online submissions form.

    You have to check what you're selling before you sell it.

    Why don't you try contacting the publisher again? Or, if you're a member of an organisation like the Society of Authors, contact them and ask for help.
    Only if you somehow sign that submission form, though a check box saying that you agree to the rights listed is acceptable. This is why so many web sites have the "read and agree" clause that we accept or decline. But merely posting such rights means nothing. You can only give away rights with a verifiable oral contract, with a signed written contract, or by checking such a read and agree box.

  11. #11
    It sounds like you are stuck. From what info you gave us your short stories would most likely be considered public domain now. Yes you still have rights to it but you allowed people to publish it freely for 10 years. whether that was your intent or not there is no going back. Effectively a copy right law only protects you if you always enforce it.

    on the flip side they have no right to stop you from publishing it on your own, you just can't stop them from publishing. which is a deal breaker for a publisher.

    My suggestion is to give them away free\cheap on smashwords or any other self publishing site. if you cant make money of it why should they at? least then you can get get your name out there.
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  12. #12
    crazy mean SuperModerator Old Hack's Avatar
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    Quote Originally Posted by Ink-Smith View Post
    It sounds like you are stuck. From what info you gave us your short stories would most likely be considered public domain now.
    "Public domain" means that copyright has expired. That's not the case with these stories, and I don't understand why you think it might be. Could you clarify?

    Yes you still have rights to it but you allowed people to publish it freely for 10 years. whether that was your intent or not there is no going back. Effectively a copy right law only protects you if you always enforce it.
    This isn't an issue of copyright law: it's an issue of rights, which is a different matter entirely. I note in some of your other comments here you claim to be a publisher: if that's the case, then you really should know better.

  13. #13
    Quote Originally Posted by Old Hack View Post
    "Public domain" means that copyright has expired. That's not the case with these stories, and I don't understand why you think it might be. Could you clarify?
    if a copyright isn't enforced from the beginning he can make a claim that it is public domain. There are Strong legal precedence.

    Quote Originally Posted by Old Hack View Post
    This isn't an issue of copyright law: it's an issue of rights, which is a different matter entirely. I note in some of your other comments here you claim to be a publisher: if that's the case, then you really should know better.
    I am well aware of the rights an author has, but he can claim you gave him permission for anything when you accepted payment. Just trying to think of ways you might be able to Achieve your goal and copyright was the first thing that came to mind. if you don't feel it applies then feel free to ignore it. What is it Exactly you want? your book rights to publish with another author? royalties? or for him to cease publishing? you wrote the book you deserve to do with it what you want.
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  14. #14
    I'm already a real writer. Katrina S. Forest's Avatar
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    Someone correct me if I'm wrong here, because I would like to understand this fully myself.

    Trademark is what needs to be enforced when you become aware of someone using material without permission, correct? Copyright is a different thing. And the only way for a living author's work to go into the public domain is for the author to put it there him/herself, which is an entirely seperate process.

    Do I have that correct?
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  15. #15
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    Quote Originally Posted by Katrina S. Forest View Post
    Someone correct me if I'm wrong here, because I would like to understand this fully myself.

    Trademark is what needs to be enforced when you become aware of someone using material without permission, correct? Copyright is a different thing. And the only way for a living author's work to go into the public domain is for the author to put it there him/herself, which is an entirely seperate process.

    Do I have that correct?
    You must have a registered trademark to be able to do that; they're not automatic. They also don't apply to stuff like novels, but to logos, names of things and such.

    Copyright is automatic and finite (generally). Once copyright expires on a work, it enters the public domain. The author/creator doesn't have to do anything for either process, again in general, they're both automatic.

    The poster above saying that works can enter the public domain if copyright was never enforced is correct in that this has been judged to have happened. In the case in the OP, I can't imagine how it'd possibly be feasible - the OP sold the stories in question. That implies copyright was recognized by the OP and the publisher that bought the stories.

  16. #16
    Well said cornflake, and you are very right. i think we can all agree that the best way for him to get what he wants is to focus on the fact that he as the rights to his book still. I suppose the question is does the publisher have rights to continue publishing it and even if he does, can he still have exclusive rights?

    Everything i know would indicate that the publisher in question has absolutely no claim to the exclusive rights, but what does the OP do about that? try to get another publisher to publish it along side?

    It seems to me that Self-publishing is a good choice in this case.
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  17. #17
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    Quote Originally Posted by Ink-Smith View Post
    Well said cornflake, and you are very right. i think we can all agree that the best way for him to get what he wants is to focus on the fact that he as the rights to his book still. I suppose the question is does the publisher have rights to continue publishing it and even if he does, can he still have exclusive rights?

    Everything i know would indicate that the publisher in question has absolutely no claim to the exclusive rights, but what does the OP do about that? try to get another publisher to publish it along side?

    It seems to me that Self-publishing is a good choice in this case.
    I have no idea what rights he holds or doesn't, as I have no idea what he signed. The OP does say there wasn't an agreement, but there are several types that aren't so obvious. Checks are tagged with 'endorsement of this document constitutes....,' or there may have been language on the site or in the sig of some email the OP no longer has. No way to know, hence people telling the OP to contact the publisher.

  18. #18
    Tired and Disillusioned Momento Mori's Avatar
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    Ink-Smith:
    From what info you gave us your short stories would most likely be considered public domain now. Yes you still have rights to it but you allowed people to publish it freely for 10 years. whether that was your intent or not there is no going back.
    That is absolute bollocks. It will be the terms of the correspondence that establish the basis on which the publisher had rights to publish the work and in what format the work could be published.

    The issue here relates to the terms on which the OP made the original contract with the publisher. It's unfortunate that the OP didn't keep their correspondence (and FWIW, my advice is that you should always keep records of all sales and correspondence relating to the same so that you can refer to it in the event of an issue and you should always make sure that you sign a contract if you're selling works).

    It seems to me that the exchange of correspondence here created an implied licence to use. If I were the the OP, I'd try emailing the publisher and say that this licence only applied to electronic rights in the story and not to print rights so if they want to use the story, they have to make an additional payment. It would then be for the publisher to prove that they have those print rights. What would help here is knowing whether the publisher was releasing print works at the time the work was originally licenced - if not, then they're going to find it hard to argue that print rights were within the contemplation of the parties.

    Ink-Smith:
    I am well aware of the rights an author has, but he can claim you gave him permission for anything when you accepted payment.
    No.

    The publisher has to be able to prove that s/he has the right to use the work in the medium in which they're using it. If print rights were never discussed in the correspondence, then they're going to find it bloody difficult to argue that they've got those rights.

    Ink-Smith:
    if a copyright isn't enforced from the beginning he can make a claim that it is public domain. There are Strong legal precedence.
    You clearly aren't a lawyer. If you were a lawyer, you'd know that the word is "precedent" and not "precedence".

    Also, it simply isn't right to say that copyright has to be enforced the moment you're aware of a breach of you face losing it. You always own copyright in your work period. That cannot be taken away from you unless you assign your ownership (which in the UK can only be done by a signed, written contract). In fact, you can wait years after a breach before deciding you want to enforce your rights - the only affect this would have is on the level of damages you can claim.

    You're confusing loss of copyright with loss of trade marks. This is a common mistake made by people who aren't legally qualified but believe they can give advice on the internet.

    It is certainly the case in trade mark law that failure to enforce your right can be deemed to be acceptance of a breach, enabling people to challenge that your mark has entered the public domain. Think about the word "Hoover" which has become a generic term for vacuum cleaners.

    I am aware of cases in England where people have sought to argue that an awareness of a breach but failure to enforce has been deemed to amount to permission to use and there are complications when it comes to derived works (which is where the whole argument over publication of fanfic comes into play) but the general position is pretty clear.

    Ink-Smith:
    Everything i know would indicate that the publisher in question has absolutely no claim to the exclusive rights, but what does the OP do about that? try to get another publisher to publish it along side?
    If the OP has (as they say) correspondence from the publisher saying that the OP can sell the story elsewhere, then it seems that the publisher believes it has a non-exclusive licence to publish (i.e. what started as an exclusive licence for x period of time then became a non-exclusive licence). Again, you'd have to look at the original correspondence to establish whether this was correct.

    However the issue here is not with regard to exclusivity. It could well be that the publisher has a non-exclusive right to electronically publish the story on their website. That, however, is very different from having a right to print publish. If the publisher can't establish that they have that right, then they have no right to publish in that format and they are in breach of copyright.

    Please stop giving legal advice on this thread. You clearly aren't qualified and the misinformation (and ignorance) you're displaying here is damaging.

    MM

  19. #19
    Your Genial Uncle Absolute Sage James D. Macdonald's Avatar
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    Quote Originally Posted by Ink-Smith View Post
    if a copyright isn't enforced from the beginning he can make a claim that it is public domain. There are Strong legal precedence.
    This is absolutely not true.

    I believe you're thinking about trademark.

  20. #20
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    Unhappy Online subsmission

    Quote Originally Posted by Old Hack View Post
    Sometimes you can assign all rights in your work to a publisher simply by using their online submissions form.

    You have to check what you're selling before you sell it.

    Why don't you try contacting the publisher again? Or, if you're a member of an organisation like the Society of Authors, contact them and ask for help.
    Hello, everyone!
    It seems I'm 4 months late in replying to this thread, but as I read, I became v. worried regarding the 'Sometimes you can assign all rights in your work to a publisher simply by using their online submissions form' part.
    Could you please clarify?
    I commented on a different post regarding the subsmission terms of Simon Trewin's Agency in UK. Whilst I didn't get any response to confirm my suspicions, I didn't get reassuring ones either. My questions is: are there really publishers/ literary agencies that - well, the word, I think, is 'steal' - the copyright from authors just by merely making them go through a tiresome submission online process?
    Did this happen to anyone? I'm very worried. And I can tell you for sure that I won't be sending my stuff to these guys - the way they want to protect themselves against all claims and leave no chance for the author to do the same thing doesn't seem fair to me. Although Simon seems like a reputable agent.
    I don't know how to approach this and I couldn't find any thread on copyright here. Probably because I didn't look well.

  21. #21
    crazy mean SuperModerator Old Hack's Avatar
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    Quote Originally Posted by Dany C. View Post
    Hello, everyone!
    It seems I'm 4 months late in replying to this thread, but as I read, I became v. worried regarding the 'Sometimes you can assign all rights in your work to a publisher simply by using their online submissions form' part.
    Could you please clarify?
    Certainly!

    There are some magazines, competitions and publishers whose terms and conditions, rules or other guidelines state that merely by submitting your work to them, you hand over all rights to the work.

    Which is why you must check those terms and conditions, rules, and other guidelines before you send your work in, and not afterwards.

    This is not standard among publishers, nor is it acceptable. But it does happen.

    I commented on a different post regarding the subsmission terms of Simon Trewin's Agency in UK. Whilst I didn't get any response to confirm my suspicions, I didn't get reassuring ones either.
    Mr Trewin is at Curtis Brown UK, isn't he? I think? That's a reputable agency. I haven't read its T&Cs but I can't imagine Curtis Brown doing anything like this.

    My questions is: are there really publishers/ literary agencies that - well, the word, I think, is 'steal' - the copyright from authors just by merely making them go through a tiresome submission online process?
    Yes, there really are such publishers out there.

    Did this happen to anyone? I'm very worried. And I can tell you for sure that I won't be sending my stuff to these guys - the way they want to protect themselves against all claims and leave no chance for the author to do the same thing doesn't seem fair to me. Although Simon seems like a reputable agent.
    I don't know how to approach this and I couldn't find any thread on copyright here. Probably because I didn't look well.
    Mr Trewin is a reputable and effective agent. But this thread isn't about Mr Trewin or Curtis Brown. Let's stick to the subject, please.

    ETA: I can't find any posts by you in the Curtis Brown thread, Dany: you have, however, posted in the William Morris thread, and you did receive a response or two there.
    Last edited by Old Hack; 07-01-2013 at 07:17 PM.

  22. #22
    practical experience, FTW Eva Lefoy's Avatar
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    Okay I'm jumping in really late here. But I have a question.

    About three years ago i self-pubbed a free read. It's on a website i don't control.

    I'd like to take that story --- which I still hold the rights to --- and rework it and sub it somewhere else. Can I do that? Are there any issues with that?

    Do I need to get the other site to take it down first?

    Thanks,

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  23. #23
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    If you sub it, you'll need to include the information with the submission that the work is previously published. If it's still available, it's very unlikely a publisher will want it, because why would anyone pay them for a story that's already available for free?

    It's growing slowly more common for publishers to consider works that are previously published, but it's still much easier to get an unpublished work through the system. You'll need to check the submission guidelines of the places your submitting carefully (most state whether or not they're willing to consider previously published work) and you've got a better chance if it's a publisher you've already got a working relationship with.

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  24. #24
    practical experience, FTW Eva Lefoy's Avatar
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    but if I self pubbed it again, I'd have no issue?


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  25. #25
    crazy mean SuperModerator Old Hack's Avatar
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    You say that you retained all rights, but you must have given that website some rights if you gave them permission to use your work: which means that your first rights are gone, for sure.

    Whether or not you can self publish depends on what your contract with the website says. Does it specify whether you gave them exclusive rights or not? What does it say about subsequent publication?

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