Copyright help (an agent must know the answer)

Exclusivity has nothing to do with contracts or publication. It' a verbal, 'goodfellas' agreement to give the agent the chance to evaluate the work so he/she can decide whether or not to offer representation.

Some publishers do not like 'simultaneous submissions'.

Scott

It doesn't sound like this was a question about submissions.

"Exclusive" is used in contracts to describe the rights being bought, e.g., "We buy first-printing world exclusive rights for two months." (from the Strange Horizons submission guidelines -- random example.) I'm not knowledgeable enough to say specifically what that means, though.

Your question probably can't be answered in this forum. It's not like "what does 'no simultaneous submissions' mean on a publisher's website?" which has a pretty well-known meaning within the industry, and also wouldn't have significant legal ramifications if you did the wrong thing.

For your question, someone would need to read the contract and see the context, and know the law in the relevant jurisdiction, and even after all that, it might be a judgment call, rather than a clear-cut answer. If you're going to market the story (is this fiction or non-fiction?) elsewhere, you might want to check with the publisher to see what they think it means, or with a publishing-experienced lawyer to get legal advice, or, at the very least, wait until after the exclusive period to submit it elsewhere.

JD, whose only legal advice here is to seek specialized legal advice in your jurisdiction.

Was this a piece of short fiction then? You might try asking this in the short fiction forum then, where people would have experience with this. Part of the problem might be that you are not really talking about copyright, but other kinds of rights, so your header is not getting the right kind of attention.

From the little I know on the subject, exclusive rights mean what you think, you can't submit this story anywhere else while the publication in question has the exclusive rights. When that clause expires, they revert to you. So if this was an online magazine, for example, don't submit it to print publications until you have the rights back (and in that case make sure they're willing to accept reprints).

I'm no expert, so I could be wrong on this. Check around.

Not sure why you'd sign a contract whose terms you don't understand, but now that you have, you should ask the publisher what you've agreed to. As you can see from the responses you've gotten, the info you've provided doesn't give us much to go on.

Since you've already signed the contract, then they're no longer asking for exclusive rights, they've got 'em. And everything else the contract stipulates.

As for your first rights question, my understanding is that whomever first publishes a piece [with the permission of the author] is exercising first rights.

Exclusive

Penge said:

Well I could have sworn I saw a copyright section. Can't find it now. Must be going bonkers already.

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Exclusive is very elusive in the way you're posting. Magazines buy first rights, or exclusive rights, depending on what rights have already been sold. First rights mean you can't do anything with the story until after the magazine has published it, and usually for a month or so thereafter. Exclusive means you can't do anything with the story until after the the time period has expired. Once the time period has expired, you own the story again, and you can do whatever you want with it.

This is not a copyright issue per se, it's simply an agreement you have made with a publisher over a piece of property you own. The same agreement could be made for use of your car or your house.

Penge said:

I've tried all the links on the copyright thread etc. etc. and googled for hours and hours but I still haven't found the answer to this one. I guess an agent, being an agent, should know.

Exclusivity.

When you get a contract from a publisher who wants exclusive rights to a piece of fiction and for a limited time (let's say two months) what exactly does that mean?

Does it mean:

1) that you can't publish the story anywhere else until it's printed by the publisher with whom you signed the contract, and once the exclusive period is up the rights revert back to you so that you can do what you like with it?

2) that you can do what you like with the story, except for that period of exclusivity - meaning you could publish it somewhere else first but it must be free during the period you signed for in the contract so that it is exclusive in that sense?

3) that you can't publish the story anywhere else except with the publisher even after the period of exclusivity is up?


It may seem obvious to you, but I'm no lawyer - as you can tell.


One other thing. Exclusivity doesn't mean you've signed away first rights, correct?

Cheers.

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Exclusivity means that you are giving a publisher the right to print and sell your material exclusively for a certain period of time, in this case, two months. Exclusivity begins the moment the contract is executed, and those rights can't be otherwise encumbered, so you couldn't, say, grant someone rights to your work and then two months later grant another publisher exclusive rights. Exclusive is exclusive.

1) The term of exclusivity begins when the contract is executed (or at time of publication, depending on the contract), and at that time you execute the contract you have to guarantee that those rights are free and clear. And yes, once the rights revert back you could re-sell those rights to another publisher.

2) You could have published the story before, as long as you have the rights back and as long as you can guarantee the new publisher exclusivity. This means that the story could exist in already-printed books, but the previous publisher couldn't be actively selling those copies. You are essentially giving the publisher the exclusive right to sell your work.

3) Yes, that's what it means -- during the period of exclusivity you can't grant the rights to anyone else.

First rights means granting first publication rights to the original publisher.

For more information on the basics of publishing contracts, I have a blog post on the topic: http://nathanbransford.blogspot.com/2007/02/basics-of-publishing-contracts.html

Just one side note:

This is about contracts more than about copyright. "First rights" are a creation of the publishing industry, and have no meaning in copyright law under either the Berne Convention or the US Copyright Act of 1976. "Exclusive right" does have meaning under the US Copyright Act of 1976, but only in conferring standing upon a party to sue for infringement of copyright, in an additive sense; that is, both the copyright holder and the holder of an exclusive right have standing to sue for infringement of that exclusive right. For example, if someone were to create a pirated print edition of one of my YA/educational books on landmark Supreme Court cases, both I (and my coauthor) would have standing to sue, because we hold the copyright; so would the publisher, because the publisher holds the exclusive right to publish a print edition. However, if someone instead created a radio play based upon the book, only I (and my coauthor) could sue, because the publishing contract did not give the publisher any exclusive rights to dramatic adaptations.

What this side note really points out is that copyright is not the only legal framework of concern to writers.