Fight for Your Rights
Understanding Literary Magazine Contracts
Understanding literary magazine contracts.
IHAVE long advocated for writers to understand the terms set forth by author agreements and publishing contracts—and to be careful about signing away the rights to their creative work. Still, I understand the temptation to forgo such practical measures when faced with the prospect of publishing your writing. In most cases authors encounter a contract only after their work has been accepted for publication. But recently, when an open call for submissions to a fiction anthology series was announced, the editor offered potential contributors a chance to review the contract terms before deciding to submit. I reviewed the agreement, and when I came across terms that I considered questionable, I knew what I would advise other writers: Don’t sign it.
On the one hand, without a publication offer it seemed premature to worry about the contract. Additionally, the anthology focused on a genre I don’t usually write, the submissions call seemed like a fun side project, and I had no plans to send this story elsewhere. I felt I had little to lose by submitting my work to the anthology. And yet I couldn’t shake my reservations about the contract terms.
The contract requested exclusive rights in all forms, including dramatic rights, for a year after publication. While it is highly unlikely anyone would want to make a film based on my story, let’s use our imaginations (we’re writers, after all) and say Hollywood did come knocking. In that case my story could be translated to the big screen while I was completely cut out of the deal. Furthermore, the contract’s clause outlining the sublicensing terms and limitations wasn’t clear, so it was difficult to say just how the publisher or editor could exploit those rights.
I forwarded the contract language to my literary agent, Erin Harris, vice president at Folio Literary Management. While this was not a submission she would formally make on my behalf, I hoped she could provide some guidance. She suggested I seek clarification from the editor and determine if the terms were negotiable. If the terms were not negotiable, then Harris couldn’t recommend I accept an offer, should one be made. The anthology editor, however, did not answer my questions and instead simply stated that “none of the contract terms are up for negotiation as they are all necessary for the production of the book.” I knew then that I had my answer: I wouldn’t submit my work.
Admittedly, not every writer can turn to a literary agent in these situations. In an effort to help other writers better understand literary magazine and anthology contracts, I sought input from Harris, as well as literary magazine editors, a short fiction author, and an Authors Guild attorney. Here’s what they had to say:
Know the industry standards for print and online publication rights.
For print literary magazine publication in the United States, the industry standard remains First North American Serial Rights (FNASR), which means the journal has the right to be the first to publish your story or poem in print; following this publication, all rights revert to the writer. For online publication, the corresponding terminology is generally “nonexclusive English world rights.” Look for the term nonexclusive to ensure you still have the ability to use the work for your own purposes in the future. (Some journals do request a brief period of exclusivity—for example, writers may be asked not to republish their work in print or online for a few
months after the original publication date.) If a publication requests rights beyond FNASR or nonexclusive English world rights, make sure you understand what rights are being requested and why.
“The contract language should be clearly spelled out up front—how the piece will be published, where it will be published, and when it will be published,” Harris says. “The publication terms should also be limited to ensure the story can’t be reproduced without the writer’s consent or knowledge.”
When possible, hold on to your other rights—because they matter.
Michael Gross, director of legal services at the Authors Guild, advises literary writers to protect their rights and think twice before signing away anything beyond the industry standard. “Don’t give up your copyright or exclusive rights, or rights in perpetuity,” he says. “Keep the grant of rights as limited as possible.”
Harris particularly cautions writers to be prudent when it comes to their dramatic and audio rights. By signing away dramatic rights, writers forfeit not only financial compensation if their work is transformed into a film, but also any creative input involving the selection of film agents, production companies, directors, acting talent, and more. As far-fetched as a potential film deal might sound, Harris points out that it is becoming more common for short stories to be adapted for film or television. Similarly, she says audio rights are becoming an increasingly important part of the publishing landscape. Book publishers may want the audio rights to a collection as a whole, but if a literary journal or anthology holds the audio rights to one of the stories in that collection, things might get complicated.
When it comes to reading contracts, be viligant.
The magazine or anthology contracts you sign today could have an impact on book publication down the road. For example, by the time Liz Breazeale won the 2018 Prairie Schooner Book Prize in Fiction, all eleven stories in her collection, Extinction Events, had been published individually in literary magazines. By publishing with reputable journals and educating herself on contract language, she eliminated potential roadblocks when signing her book contract with the University of Nebraska Press, which publishes the winning manuscript of the annual prize.
“I was always on the lookout for anything in a contract that didn’t feel right,” Breazeale says. “I was lucky, because every contract I received from a literary journal was really clear. But simply being aware that I needed to read the contract carefully and understand it helped me become better informed.”
Harris echoes this point, noting that it can be easy to overlook contract terms when faced with the promise of publication. “Don’t let the initial
excitement of a publication offer eclipse the risks of giving your writing to someone who might not be a good custodian of the work,” she says.
Don’t be afraid to ask for help. Too often I’ve encountered writers who are afraid to question the contract language they’re asked to sign. They may fear the editor will rescind the publication offer, or they may feel intimidated by the legal terms. But any reputable editor should be willing to answer contract-related questions. Furthermore, writers should respect their work and strive to protect it.
“If you read the contract terms and something seems off, ask a fellow writer, a professor, or someone with more experience,” Breazeale says. “Trust your gut, and ask for a second opinion. It’s important. These are the rights to your intellectual property. It’s your livelihood.”
No contract? No problem
(probably). While many literary magazines use a written agreement to clarify the terms of publication and to ensure writers and editors are on the same page, not every publication uses a contract. Some small journals or online publications in particular might have more informal ways of operating, especially if they don’t pay writers—simply an offer of publication and explanation of terms via e-mail, for instance, without accompanying paperwork—and the lack of a contract is not necessarily a cause for concern. As Gross points out, “Legally, if you don’t sign anything, you’re not transferring exclusive rights. If there’s no contract, the terms are nonexclusive and subject to whatever the publisher can prove.”
Even if writers don’t sign anything, however, they effectively give up first publication rights once the work has been published. Contract or no, writers should always do the requisite research to make sure the publication is reputable and will treat their work with care and respect.
Once the contract is signed, there is no going back. For an annual fee,
writers can join the Authors Guild and receive access to publishing lawyers who can advise them on contracts. Just be sure to seek that advice before signing on the dotted line, not after.
“Writers sometimes come to us after they’ve already signed a contract to ask, ‘What did I get myself into?’” Gross says. “Once the contract is signed, there’s not much we can do legally. We try to educate the writer, to point out the pitfalls and make sure this doesn’t happen again, but it would be ideal if they came to us before signing the contract—before it’s too late.”
Online publication has complicated contracts and rights. Years ago, literary writers likely had to concern themselves only with FNASR, but today online publication raises new questions. For example, most journals consider work previously published if it has appeared anywhere online, including personal blogs or social media. And sometimes writers might publish with an online journal but later decide they’d like their work taken down. (According to Gross, writers ideally should have the option to ask the publisher to remove their work from the website after a certain amount of time.)
While online publication can present new challenges in terms of rights and exposure, the ability to reach a wider audience is an attractive option for writers. According to Jonathan Bohr Heinen, the managing editor of the long-running literary journal Crazyhorse, writers appreciate both print and digital publication.
“Our contract is pretty basic. We require First North American Serial Rights [for print], confirm the piece hasn’t been published elsewhere, and the rights revert to the author following publication,” Heinen says. “But in the last fifteen years, the rise in digital publication has required us to make changes to our publication agreement. We ask for digital rights to feature work on the website, as well as archival rights. If a writer asks us not to publish a piece online, we honor that, but almost all contributors are eager to appear on the website. Writers seem to like both— the pedigree of print and the visibility of digital.”
Communication is key. I felt uneasy about the fiction anthology contract when I learned negotiation wasn’t an option and when I couldn’t secure a satisfactory explanation concerning the contract language. Questioning the terms in a contract can be a difficult task for writers, especially when so often it feels like we should simply be grateful to have our work considered for publication. But publishing isn’t a favor; it’s a transaction. Remember that writing is a job, and an important part of that job is to advocate for ourselves and ask questions, especially when it means clarifying terms that seem unclear.
“If writers have questions about a contract, they should ask,” Heinen says. “As an editor, ideally, you want to make a contributor feel comfortable. If the editor refuses to engage with a writer’s questions, that writer should reassess whether they want to be in that publication.”
Harris adds that writers also shouldn’t shy away from discussing the business side of writing with their peers. “I think writers should be encouraged to speak more openly amongst themselves about
their contracts, unless of course they’ve signed some kind of nondisclosure agreement,” she says. “There’s a need for greater transparency, community, and solidarity.”
Don’t worry about copyrighting your work. While writers should be thoughtful about their rights, paradoxically, they needn’t concern themselves with copyrighting their work. Attaching a copyright symbol to your story or poem is often considered unnecessary at best and unprofessional at worst. Your work is automatically copyrighted by virtue of your writing it, not to mention the digital paper trail that exists in the world of online submissions. The time to think seriously about rights is when you’re asked to sign a contract. Until then, Heinen advises writers to focus on the craft of writing rather than legal concerns.
Distinguish between intent and the law—and remember that the law always wins in the courts. At several points in my career, I’ve been presented with a contract that says one thing while the publisher tells me another. Publishers assured me in these instances that they had no intention of exploiting all the rights the contract stipulates, and I believe their promises were sincere. Ultimately, however, it doesn’t matter what an editor or publisher intends—whatever appears in the contract is the law.
“If the publisher has the rights, they can take those rights,” Gross says. “It’s wishful thinking to say otherwise.”
Look beyond rights and payment.
As the editor in chief of the Common, a literary magazine with a mission to deepen the individual and collective sense of place, Jennifer Acker pays contributors equally whether their work appears in print or online. (Like Crazyhorse, the Common requests standard FNASR for print publication and nonexclusive digital rights for online publication.) Still, she stresses that there’s more to the literary magazine publication process than money and rights.
“In a field where there isn’t much payment, for us, being able to offer dual platforms and promoting writers heavily is important,” Acker says. “Promotion usually isn’t outlined in contracts, but it can be worth asking about. A lot of times, magazines don’t have the infrastructure or budgets to offer much money, but what they can offer in terms of promotion, social media reach, press releases, and events is something to consider.”
Remember that contracts help writers, too. Literary magazine contracts can help writers advance in the profession, protect their work, and ensure a positive publishing experience. Contracts can also be a valuable part of a writer’s career development.
“Publishing work in literary magazines can be a fantastic training ground for emerging writers. It’s a rite of passage, and the process can help writers develop the emotional calluses one sometimes needs to continue soldiering on,” Harris says. “The literary magazine community is a wonderful way to become acquainted with peers and discover others who might support you as a writer in a reciprocal, creative partnership. It can also capture the attention of agents—I look for new voices in the pages of literary magazines and will sometimes contact writers after reading their work.”
“Lit mags are part of the publishing ecosystem, where writers often get their first start building their careers,” Acker adds. “Editors should be able to guarantee the work they’re stewarding in the way they intended. Contracts should help build trust and create an atmosphere of professionalism—not make things more confusing.”
UNFORTUNATELY,“confusing” was exactly how I’d describe the contract for the fiction anthology. In an effort to gain some clarity on the matter, I reached out once again to the anthology’s editor, Rachel Kramer Bussel, who agreed to discuss my questions in greater detail. Bussel, who has edited more than sixty fiction anthologies, enlisted a publishing lawyer to help her draft the contract for this particular anthology, which she says must mirror the terms outlined in her agreement with the book’s publisher. This is why, Bussel says, she was unable to negotiate individually with writers. It might also explain why she couldn’t elucidate the finer points of the clause granting exclusive rights.
“I totally understand if writers don’t want to participate or submit [because of the contract], but unfortunately I don’t have much of a say over it,” Bussel says. “I’ve had numerous widely published authors included in this series, and they were okay signing the contract. That signals to me that the terms are agreeable enough for people to submit. Writers should ask themselves whether what they’re getting from the publication is worth it for the contract they’re signing. Sometimes that answer is yes, and sometimes it’s no.”
It’s true that for many writers, this anthology’s $200 payment, along with the promotion that comes along with having a story published in an established series, would make the contract terms worthwhile. Furthermore, my conversation with Bussel convinced me that she cares about her authors and their careers. Harris believes that most editors operate from a place of generosity and want writers to succeed, and I’m inclined to include Bussel in that category. Even so, I can’t overlook the advice I received from Harris, Gross, and other experts.
Good intentions aside, I’ll hold on to the rights to my work. I’ll make sure I fully understand every clause in a contract before signing. Most of all, I’ll listen to my instincts and proceed with caution if something feels wrong, or even just not right for me—because I owe at least that much to myself and my creative endeavors. I hope other writers value their work enough to do the same, and make informed decisions about what’s best for them.
Erin Harris, Folio Literary
Michael Gross, Authors Guild