Editor
ASJA Newsletter
To the Editor:
I don't object to Jim Budd's
"sell all the rights and charge for them up
front" approach to the subsidiary-rights issue
("Another View on Guerilla Marketing,"
Letters, ASJA Newsletter, May 2000, p. C3).
I don't work that way myself, and don't want to,
but it's certainly one way to go.
However, in his conclusion
he says, "Then, if another editor is interested
in the subject, do a little rewriting." This
is bad and wrong-headed advice; following it is
dangerous, and potentially costly. Here's why.
When you revise something
you yourself have written and for which you own
the copyright and any relevant related rights, and
submit it for publication, you're not breaching
anyone's copyright. Putting a new lead on an article,
updating it a bit, moving some material from the
main body of the text into a sidebar or vice versa
-- these time-honored ways of "refreshing"
a published piece of writing for republication elsewhere
are widely accepted as legitimate professional practice.
And they're perfectly legal.
Once you sell outright the
copyright, however -- or the right to any particular
usage (French-language rights, CD-ROM rights, Website
rights, whatever) -- you have surrendered your right
to ever again use that text in that way. Which means
that if you sell the copyright of an essay to a
publisher, you can't tweak that text a bit, add
a few new paragraphs, delete a few, and license
or sell it again to another publisher. If you do
so, you've violated the copyright of the person
or entity that now owns that text. You're subject,
in fact, to the "fair use" law, which
proposes that only small portions of a text can
be reprinted without written permission, for specific
kinds of usage -- and that it must be put in quotation
marks and its source cited, to boot.
Recall, if you will, the
classic episode of Seinfeld in which Cosmo
Kramer sells his life story, including his anecdotes,
to J. Peterman. Subsequently, he starts to tell
those tales to his buddies in a bar -- only to learn
that he can't use those stories anymore: they're
no longer his to tell, because they belong to Peterman.
Fortunately for Cosmo, Peterman
tires of the stories and reverts the rights to him.
Your clients are not likely to prove so generous.
So if you follow Budd's advice and simplify your
writing life by selling all rights to your piece
and then find another outlet for a piece on that
subject, you won't be able to just "do a little
rewriting." You'll have to produce an entirely
new piece, from scratch, with completely new phrasing,
new quotes from your sources, new everything. That's
the law -- and anyone who paid you for all rights
and found you publishing slightly revised versions
wherever you chose would be a damn fool to let it
slide.
Not only that, but by republishing
a piece that way you're opening up whomever you
trick into printing it to liability in a copyright-infringement
suit. Not smart business, and not ethical either.
if I did that and got caught, I'd expect to find
myself blacklisted -- and not just by the publications
involved.
That's the explanation Jim
Budd doesn't get for fighting to retain your rights
to your work: You can publish the same piece of
writing more than once, so you don't have to find
different ways to write the same essay over and
over again. I prefer to work that way. Nothing wrong
with striking the best deal you can for all rights,
and letting them go, if you can't be troubled with
negotiating a more nuanced deal; but kiss that piece
of writing goodbye forever when you sign that contract,
because you don't get to use it ever again. The
illegal practice Budd advocates, and the ignorance
of the law he demonstrates, can get you into serious
trouble.
/s/ A. D. Coleman
Staten Island, NY
This letter appeared in print
under the title "Letters: Warning on Resales"
in the ASJA Newsletter, Vol. 49, no. 6 (June
2000), pp. C3, C7. This publication is the newsletter
of the American Society of Journalists and Authors.
