Rights question

Kensington · Sep 23, 2009

A publisher paid me outright for a novel some years ago. No written agreement. Now I'd like to redo it and send it out to another publisher. Is this legal?

benbradley · Sep 23, 2009

No written agreement? Are you sure? Not even on the back of the check?

geardrops · Sep 23, 2009

What publisher? What rights were consumed? How drastically would you rewrite it?

Kensington · Sep 23, 2009

benbradley said:
No written agreement? Are you sure? Not even on the back of the check?

I believe the title of the story was on the front of the cheque. But there was no contract, or anything in writing.

Kensington · Sep 23, 2009

dempsey said:
What publisher? What rights were consumed? How drastically would you rewrite it?

I'd rather not mention any names here. As for rights, there was nothing in writing. Not even any verbal agreement. They just sent me a cheque for the story and that was it. Haven't heard from them since. I'm not sure about the rewrite, yet. I do intend to change it, but how much it's hard to say. I'll certainly give it another title.

KTC · Sep 23, 2009

They paid you? For a novel? And didn't do anything with it? Just sent you a cheque?

Have you ever contacted this publisher since?

Mumut · Sep 23, 2009

Kensington said:
As for rights, there was nothing in writing. Not even any verbal agreement.

I can't imagine there not beong a verbal agreement. You must have asked if they would like to buy your book and they said, 'Yes'. Or they heard about your writing and asked if they could buy your book for $x,xxx,xxx and you said, 'Yes'.

That is a verbal agreement and could easily be considered a contract in a court of law. You'll have to think what words were used. If they can prove that you said enough for them to believe they had all rights for ever, that could be what was in the verbal contract. If you get a first-year-college book on contract law out of the library, you'll find out in a few minutes read what is involved.

Contracts can be implied but that couldn't be the case here. That's for cases like where you park your car and pay the parking fee at a machine. There is a contract there even though no words were spoken.

In your case, words used to discuss the sale of your work could be important. They can be the conditions precedent to the sale and might have bearing on the essence of the contract.

Do you belong to a writers' organisation which gives free legal advice to members? If so, run it past their solicitors.

the addster · Sep 23, 2009

If you cashed the check, you have a contract.

But, it's hard to legally plagiarize yourself.

Check with a lawyer.

But, I'm betting with some changes, you will be alright.

Kensington · Sep 23, 2009

KTC said:
They paid you? For a novel? And didn't do anything with it? Just sent you a cheque?

Have you ever contacted this publisher since?

Well actually they did send me a copy of the novel. And there's been no reason to contact them.

Kensington · Sep 23, 2009

Mumut said:
I can't imagine there not beong a verbal agreement. You must have asked if they would like to buy your book and they said, 'Yes'. Or they heard about your writing and asked if they could buy your book for $x,xxx,xxx and you said, 'Yes'.

That is a verbal agreement and could easily be considered a contract in a court of law. You'll have to think what words were used. If they can prove that you said enough for them to believe they had all rights for ever, that could be what was in the verbal contract. If you get a first-year-college book on contract law out of the library, you'll find out in a few minutes read what is involved.

Contracts can be implied but that couldn't be the case here. That's for cases like where you park your car and pay the parking fee at a machine. There is a contract there even though no words were spoken.

In your case, words used to discuss the sale of your work could be important. They can be the conditions precedent to the sale and might have bearing on the essence of the contract.

Do you belong to a writers' organisation which gives free legal advice to members? If so, run it past their solicitors.

I sent them the story as a submission for their review. Everything was done by email.

Kensington · Sep 23, 2009

the addster said:
If you cashed the check, you have a contract.

But, it's hard to legally plagiarize yourself.

Check with a lawyer.

But, I'm betting with some changes, you will be alright.

The publisher seems to be at least partially out of business. The website is run by another company. And the catalogue where my story was listed, is no longer on the site. I did a Google search and it didn't come up.

katiemac · Sep 23, 2009

Sounds like you're going to need to contact them to find out what happens to your book rights if they indeed are out of business.

Kensington · Sep 23, 2009

katiemac said:
Sounds like you're going to need to contact them to find out what happens to your book rights if they indeed are out of business.

There's usually some limit put on the amount of time a publisher owns rights to a story, six months then you can publish it elsewhere, that sort of thing. Although some retain the right to keep it in their archives, indefinitely.

Mumut · Sep 23, 2009

Kensington said:
I sent them the story as a submission for their review. Everything was done by email.

So the emails hold the details of the contract. Do you still have the emails? Also, as far as I'm aware, a company is a legal entity. It can enter into contracts. If that company ceases to exist, it could mean the contract is nullified. That depends upon the contract laws in your country. It might be worth contacting the new company for clarification.

Namatu · Sep 24, 2009

Kensington said:
There's usually some limit put on the amount of time a publisher owns rights to a story, six months then you can publish it elsewhere, that sort of thing. Although some retain the right to keep it in their archives, indefinitely.

You have to know what that timeframe is. If the publisher is out of business, or sold to another company, the rights could have transferred with the sale. I suggest contacting someone at the company to confirm.

the addster · Sep 24, 2009

You can do a search to see if their corporate charter is still active. For most states, there is a search engine on the Attorney General's website. You can also search by names of principals in the corporation to see if they are involved in another corporation, this might help you get in contact with them.

Kensington · Sep 26, 2009

Thanks, everyone. Have a good weekend.

ideagirl · Sep 28, 2009

the addster said:
If you cashed the check, you have a contract.

Not true. You can't have a contract if critical terms (like what exactly was purchased) are unknown. There are exceptions for certain types of things--the Uniform Commercial Code and laws based on it, for example, can impose contracts between merchants who buy and sell goods (i.e. objects)--but the OP is a writer, not a merchant, and the rights to a novel are not goods, so unless the critical terms were discussed orally or in the emails, there's no contract because it's impossible to know what the contract was FOR.

The advice re: figuring out what ever became of that publisher, if they are still in business, etc. is good advice. The OP also needs to review the emails to see what was said, if anything, about what rights were being purchased and what, if anything, the publisher promised in return (e.g., did they say the book would be published?).

suki · Sep 28, 2009

ideagirl said:
Not true. You can't have a contract if critical terms (like what exactly was purchased) are unknown. There are exceptions for certain types of things--the Uniform Commercial Code and laws based on it, for example, can impose contracts between merchants who buy and sell goods (i.e. objects)--but the OP is a writer, not a merchant, and the rights to a novel are not goods, so unless the critical terms were discussed orally or in the emails, there's no contract because it's impossible to know what the contract was FOR.

The advice re: figuring out what ever became of that publisher, if they are still in business, etc. is good advice. The OP also needs to review the emails to see what was said, if anything, about what rights were being purchased and what, if anything, the publisher promised in return (e.g., did they say the book would be published?).

Yes, I agree in theory with the bolded bits. BUT the OP sold something - hence OP's receipt of payment and then the company did publish the book (it appears). Therefore, given the dual performance (it appears), the presumption in some states will be that OP sold whatever rights are customarily sold to similar publishers - ie, right to publish, eg.

So, without legal advice, he should not resell those rights.

OP - Do the research - figure out who likely owns whatever you sold. Then contact that entity re releasing whatever rights they have.

And if that can't be easily accomplished, find an intellectual property attorney.

But IMO (and note, not a legal opinion or legal advice, only my opinion :} ) it would be potentially dangerous to assume anything given the facts as described. Do your research then consult an attorney if you can't get a clear, written release from the clear owner of whatever rights you sold.

~suki

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