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Contracts, rights and liabilities

Started by dbmaine56 at 08-04-2005 5:20 PM. Topic has 12 replies.
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   08-04-2005, 5:20 PM
dbmaine56

Joined on 05-09-2004
Posts 94
Post Icon Unknowingly giving away First Rights
Did anyone see in Writer's Digest (August 205) that if you post your story on a website, even for critiques, you are in reality giving away First Rights for publishing.

Most contracts require you to acknowledge that the piece hasn't been printed, or published in any form (and that means even on blogs, or a website including a writer's website).

It is possible to goggle the web and find works on sites. So publishers do have a way of checking.

Just a warning to keep in mind. Be careful of your work and what you do with it.






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   08-04-2005, 6:33 PM
dbmaine56

Joined on 05-09-2004
Posts 94
RE: Unknowingly giving away First Rights
The issue is Writer's Digest (August 2005)

Sorry 'bout that!


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   08-05-2005, 4:26 PM
veinglory

Joined on 12-06-2004
Posts 164
RE: Unknowingly giving away First Rights
It seems fairly obvious that making a story available to the public for free will mean most markets will not be interested in paying for it.
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   08-05-2005, 11:33 PM
dbmaine56

Joined on 05-09-2004
Posts 94
RE: Unknowingly giving away First Rights
I found the legal advice in the magazine interesting.

So many writers post their writing on critique sites in whole or a chapter at a time and eventually the entire novel has been put online.

Others post their novels and/or stories on their websites.

Which according to the magazine, means they have actually used/given away their first rights and can no longer sell first rights to a publisher.

I have never posted my writing online, and after reading the legal advice, I am relieved that I haven't.


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   08-06-2005, 12:04 AM
Jamesaritchie

Joined on 04-11-2002
Posts 3,588
RE: Unknowingly giving away First Rights
This is talked about all over the place. Warned against all over the place. But it really is not a legal issue. Editors can still buy first rights, i fthey want to do so. You haven't actually lost them.

It's just that editors only want stories the readers haven't seen before, and you can't sell an editor something he doesn't want to buy.
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   08-06-2005, 12:13 AM
dbmaine56

Joined on 05-09-2004
Posts 94
RE: Unknowingly giving away First Rights
I had heard of this for some time also. What drew it to me was that the piece in the magazine was from a WD legal expert.

I err on caution, so basically for myself - better safe than sorry. I don't want a loophole to happen when there is a lot of money involved.

Most contracts you sign state that you acknowledge that the piece hasn't been printed, or published in any form (in public domain). If it has been on the web/online, and you sign, then legally you could be held accountable.


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   08-06-2005, 1:23 AM
Jamesaritchie

Joined on 04-11-2002
Posts 3,588
RE: Unknowingly giving away First Rights
Yes, every editor has the right to know the complete publication history of any story submitted to him. Writers who conceal this, and are found out, are in trouble. Editors do talk to each other, and word gets around quickly.
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   08-06-2005, 7:20 AM
LinnAnn

Joined on 11-06-2003
Posts 3,566
RE: Unknowingly giving away First Rights
I think part of the concern is that if someone posts a short story here, say in the critique section, does that mess up the 'first rights' concern. So James, does it pose a problem to post here as a work asking for critique?
love, LinnAnn
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   08-06-2005, 9:31 AM
Jamesaritchie

Joined on 04-11-2002
Posts 3,588
Post Icon RE: RE: Unknowingly giving away First Rights
QUOTE: Originally posted by LinnAnn

I think part of the concern is that if someone posts a short story here, say in the critique section, does that mess up the 'first rights' concern. So James, does it pose a problem to post here as a work asking for critique?
love, LinnAnn


I wouldn't do it, but it really is up to an editor. Editors do not like to see stories that have been posted online simply becuase you never know how far that story will travel, or how many have seen it. Even if a critique site has few members, it takes only one bad apple to copy a story they like and post it around for their friends to read, who then post it around for their friends to read. This means an editor never knows how many of his readers have seen a story that's been in a critique forum, and no editor wants to receive a letter from a reader thats says, "Dear Blithering Idiot, what gives? I pay six bucks for your magazine, and the first story I turn to is one I read online six months ago. Please cancel my subscription."

It does happen, and when it happens it does not make for a happy editor.

Having said that, a critique forum such of this is less of a problem that a webzine, and less of a problem than having a story posted on a personal website, and editors are considerably less bothered by critique forums than with these other two venues. But most editors do prefer password protected forums where only members can see the stories.

Open forums do bother many editors. Whether or not it bothers the editor enough to make him pass on a story depends entirely on teh individual editor. From what I've learned just lately, the answer is most often no, it won't make most editors pass up a good story, but here and there you find editors who simply do not want stories that have been posted on open forums.

So I think the best idea is to use critique forums that are password protected. It shouldn;t make all that much of a differnce, but it seems to. Editors have no problems with buying a story posted in password protected sites, even when a hundred or more readers might have viewed it. But open forums do give some editors pause.

So I wouldn't do it, but at the same time, I don't think it's going to kill a story's chances at most magazines.

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   08-06-2005, 9:34 AM
dbmaine56

Joined on 05-09-2004
Posts 94
RE: Unknowingly giving away First Rights
LinnAnn,
I'm certainly not a lawyer, but according to the article in WD, yes it does mess up the 'first rights'. It was stated in the article that it didn't matter if 50 people or 10 million people see it. It has still been 'published'. It also stated that if it has been online then as long as you tell the editor then you might be able to work something out with a publication.


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   08-06-2005, 8:35 PM
Jamesaritchie

Joined on 04-11-2002
Posts 3,588
Post Icon RE: RE: Unknowingly giving away First Rights
QUOTE: Originally posted by dbmaine56

LinnAnn,
I'm certainly not a lawyer, but according to the article in WD, yes it does mess up the 'first rights'. It was stated in the article that it didn't matter if 50 people or 10 million people see it. It has still been 'published'. It also stated that if it has been online then as long as you tell the editor then you might be able to work something out with a publication.


There are two sides to rights. There's the legal side, where you either do or don't own first rights. Then there's the editorial side where an editor can buy what he wants and refuse to buy what he doesn't want.

Editors really care about one thing only: is this a story my readers are likely to have seen before? It isn't about whether or not something has technically been "published," it's about whether or not an editor will buy the piece to print in his magazine.

If an editor loves a short story, and if he doesn't think any of his readers have seen that story, very few editors are going to reject that story because posting it in a critique could technically be called "publishing."

Critters is a widely used critiqque forum, and I know a number of selling writers who use it. Eugie Forster runs all her stories through Critters, and usually gets from twenty-five to forty detailed critiques, along with a hundred or more reads, sometime smany more reads, but her stories still sell routinely to top magazines where the editors all know she uses Critters. Seh sold two stories to Realms of Fantasy not long ago that had both gone through Critters. And, yes, I'm jealous. That's a top flight magazine, and one I'd love to break into.

Anyway, yes, if you post a story where it can be accessed by the general public, someone can, if they wish, say that that piece has been technically published. It has been. Whether seen by ten people or twn million people, it can still be technically counted as "published."

But the real world isn't this cut and dried. Editors are always looking for good stories, and they just do not receive enough realy good ones to care much about whether or not a story was posted on a critique forum. A webzine, yes. A personal website, yes. But not because the piece has been technically published, and not because First Rights have suddenly vanished. Editors don't usually want these stories for pragmatic reasons. There's simply too much chance that some of the magazine's readers will already have seen the story elsewhere.

There are always exceptions, but very few editors will refuse to buy first rights because a story was posted on a critique forum.

Another point is that stories posted on critique forums are highly likely to be rewritten drastically before an editor ever sees them, and such stories are seldom left posted for very long. Or shouldn't be. Once a story has received its share of critiques, it should always be removed.

Editors are simply after good stories that none of their readers are likely to have seen before in the form he will publish them in. You usually can't work out a deal with good magazines when the story has been published in a webzine or on a personal website, simply because that story has probably been read by too many people. But posting a story on a critique forum is not the same thing.

There are an awful bunch of stories out there in top magazines right now that have been posted on critique forums. Password protected forums are far and away teh safest bet, but regular critique forums don't steal away first rights automatically, either.

Fortunately, darned few magazines are run by lawyers. Editors still make the decision of whether or not to buy a story, and editors buy stories based on whether or not any of their readers have seen the story before, and not on the technical definition of "published."
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   08-06-2005, 10:21 PM
dbmaine56

Joined on 05-09-2004
Posts 94
RE: Unknowingly giving away First Rights
James,
I do understand what you are saying and realize that having a short story critiqued doesn't stop some editors from buying it. (though I wonder how the contract is worded and if the author is signing something they know to be untrue. -on the part of it not having been printed or published before.)

I doubt very few authors/writers come forward and tell the editor who wishes to buy their short story that it has been online - for whatever reason, critiquing or just posting.

One small item bothers me somewhat though as far as a closed forum or open forum. Anyone can register for a forum and become a member with no questions asked. So, to me, having a password forum doesn't necessarily mean that whatever you post is safe and from an editor's point of view, that only a few people have read it. Also, with forums, there isn't a delete on it so that after a while you can remove your story from the site. I admit I haven't checked out this one personally for that delete button, but I have read on other forums of writers who wanted to remove their 'story' but couldn't for that very reason.

However, as for myself, I don't write short stories, I am a novelist. I do not have my novels posted on any online site either for reading or to be critiqued. With the kind of money involved with novel contracts, I know I can sign the contracts in good conscious and truthfully acknowledge that the piece hasn't been printed, or published in any form (in public domain). There is no way I would risk my reputation as an author or risk losing payment /royalties over something as trivial as critiquing on the web. It isn't worth the risk.

I felt that this was a subject that some writers weren't aware of and was a good point to bring up.

Thus, points taken and given, it is up to the individual writers to make their own choice as I have made mine.


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   08-06-2005, 11:20 PM
Jamesaritchie

Joined on 04-11-2002
Posts 3,588
RE: Unknowingly giving away First Rights
I believe you can delete stories on any forum. If you can edit a post, you can delete the story simply by editing it away, and then replacing the hearder with the word "deleted."

I agree that writers should know the facts, and should be very careful about where and how stories are posted. I do know Critters doesn't bother any editors, but it is password protected, and I doubt anyone goes there with the intent of taking stories and posting them elsewhere. Editors take good faith into account.

But I've received a lot of contracts from various magazines, just under 100 for short stories, and I know how most of those editors feel about critique forums. Editors do not want stories posted and left there, but they are understanding about the critiqueing process.

It probably is best not to post the final version of a story on a critique forum, and as I've said, I would not personally post any story on any forum that isn't passwroid protected, but it doesn't seem to bother most editors. There's always a risk involved, but as long as the writer uses common sense, I don't think the risk with short stories on critique forums is much to worry about.

I would never, under any circumstances, post a complete novel online. There's simply no sound reason for doing so, if you ever want that novel to be published.

A writer should never, ever lie to an editor about a story's history, but most of the editors I've known do not count stories posted temporarily on critique forums as "published."
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