Fight for Your Rights

Un­der­stand­ing Lit­er­ary Magazine Con­tracts

Poets and Writers - - Contents - By laura may­lene wal­ter

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

Newspapers in English

Newspapers from USA

© PressReader. All rights reserved.