People may give you links to websites, or their own opinion, or whatever, but the only information that's worth anything in this involved and technical area of law is the advice of an attorney who practices regularly in the field.

If you think you have something of commercial value, you have two simple options: (1) don't share it publicly (all social networking sites count as "public"); or (2) hire a copyright attorney to advise you.

Option 3 is to rely on internet articles and lay opinions, which are worth the nothing you pay for them.

Terms and conditions such as these are dealt with under contract law. Things like "distribution rights" should be defined in the contract. There's no law I'm aware of that covers "distribution rights" or "material rights".

Copyright is dealt with under copyright law, which says, essentially, that if you orignate a work, you own it until and unless you sell the copyright.

So, for example, the copyright to much of the Beatles music was sold, and I believe Michael Jackson currently owns it (or recently sold it to pay his debts). Ownership of the copyright will be transferred and defined as such in the contract of sale, and ownership will be governed by contract law. The (new) owner of the copyright work can protect it from unauthorized use with copyright law.

If you sell a story to a publisher, unless you sell the copyright (most of us don't) you'll retain the copyright. What the publisher can do with the story (including distribution rights) will be defined in the contract of sale, and enforced with contract law. So, for example, if they buy first publication rights and nothing else, they can't distribute it further because that would violate your rights under copyright law.

If you sign a contract that says they can distribute your material how and when and where they like, I imagine this contract takes precedent over your rights under copyright law; if that does not automatically happen (and I'm not a lawyer and don't know) I imagine that in the contract they'll also make you sign away your rights under copyright law.

Bottom line: two laws to understand, copyright and contract. Don't sign away rights you want to retain under copyright law when you sign contracts.

Easy:

quote:

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By using or accessing the Facebook Service, you agree that you have read, understand and are bound by these Terms of Use ("Terms"). We reserve the right, at our sole discretion, to change or delete portions of these Terms at any time without further notice. Your continued use of the Facebook Service after any such changes constitutes your acceptance of the new Terms.

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I imagine you mean your rights as a writer, or as a contributor to an on-line community, and if that's the case, you want a book on copyright, contract and libel law, as well as the broader issues of protecting freedom of speech, personal privacy and freedom of information. It's a complex nightmare, made worse by the fact that laws are written vaguely, and their interpretation is fine-tuned through precedents--cases that have been previously settled by courts and so provide a model of interpretation for use in resolving later disputes.

It's worse again online, because the internet evolves faster than the law can keep up with, because the internet can support anonymity, and because laws are different in different countries.

I have trouble believing most authors hire an attorney for their first sale. Am I ignorant to think that doesn't happen?

The United States Constitution authorized copyright legislation in 1787, first enacted in 1790. The Statute of Anne, in Great Britain, was the first ever copyright act, 1710. The Berne Convention, 1886, extended copyright protection across international borders, but nonsignatory nations ignored copyrights. Some still do, and ignore or merely pay lip service to more recent global copyright agreements, like the World Trade Organization's TRIPS, The Agreement on Trade Related Aspects of Intellectual Property Rights.

Up until the US Copyright Act of 1976, rights infringements could be adjudicated in state or federal courts. However, the 1976 act abolished all state copyright laws. Copyright lawyers are, anymore, federal courts lawyers. On the other hand, the 1976 act extended the caliber of protections for authors as well as extended term limits. In a rare and sweeping example of unanimously praised legislation, the 1976 act effectively established a balance of law for the various legitimate concerns involved in publishing.

At it's simplest, copyright protection is automatic for any creative intellectual property in a fixed, tanglible form. Some exceptions apply, like a spontaneous or extemporaneous oral or live presentation not recorded is not protected because it's not fixed in a tangible form. Short works, of one or a few words can't be copyrighted. (One of the commercial issues for pinhead fiction is it's length. Ernest Hemingway's "For sale; baby shoes, never worn." incorporated as part of a larger work is protected.)

Digital publishing rights are still in their infancy legal-wise. There are a few challenges to digital rights in the courts, but the courts have typically held that the language of a rights contract addressing digital rights provides adequate notice of rights. One of the more common challenges has been whether a digital publication is, in fact, in a fixed and tangible form. The courts have not specifically addressed the issue in a universal fashion, but precedents are inclining toward recoginizing that digital formats are fixed and tangible media.

In fee simple, terms of use notices on Web sites typically incorporate what usages a user may enjoy. Effectively giving away first digital publication rights is common on social networking sites, but does not result in loss of rights possession. A key word is "nonexclusive." Stated intent is also critical to what a Web site host may do with contributor content.

Anything published on the Internet is expressly, automatically afforded copyright protection, a feature of the Berne Convention Implementation Act of 1988 and later copyright legislation. Fair use and outright open-ended permission to use digitally published intellectual property notwithstanding, it's still protected. Rights infringement might not apply, but moral codes still do. Plaigarism is still plaigarism. Attribution is required by convention in the US regardless of granted permissions. In some countries, plaigarism is a criminal act. In the US, rights infringement is a criminal act; plaigarism, not necessarily. However, plaigarism is one of the most vile acts of intellectual piracy imaginable: lying, cheating, and stealing.

First-time authors don't always sign publishing contracts under the advice and consent of a lawyer. But like with anything legal, when one puts their signature on a contract it's a good idea to have a full understanding of all the terms. Any contract should, at least, be reviewed by a lawyer.

I would not hire an attorney for short story or book sale. But, I've been a consultant for many years and read contracts between myself and clients, between clients and their customers, and have learned that while contract language can appear obfuscatory, it can be penetrated. And I trust my judgment on these things. Others might not, in which case an attorney is required, I guess.

I would imagine that reputable publishers and agents have standard contracts which are fair to both parties, for things such as sale of first USA print rights, sale of first global print rights, anthology rights and movie rights. For a reputable company it's not worth risking one's reputation on dodgy contracts, nor on writing one-off contracts that are non-standard in some way and therefore demand the expense of an attorney.

Disreputable print companies are different, and they're discussed on various writer's websites. Their contracts are bad for authors.

On misleading material, well, I chose a book on computer security law because it was published in 2008 by Oxford University Press --so, up to date and from a reputable publisher that uses authoritative reviewers.

A few years ago I wasted a very large amount of money on a misleading lawyer, whose bad advice I mistakenly and disastrously followed. We're responsible for our own decisions, whether the book to trust, the lawyer to hire, or the publisher to do business with.

I believe things are more civilized in the print world than on-line. When a work is published on-line, not only is the law less mature and thus not easy to interpret, the internet is an untamed world because copying is easy and enforcement is not.

As the music industry found, even if copying is illegal, people will do it if it's easy; some will even make the case that, since they want to, they should be allowed to.

Enforcement is made difficult in the cvirtual world by the way the law changes from one country to another, by the need to determine where the offence was committed (if I copy material from a US server to a Russian one using my UK internet account, where was the offence committed and which country's law applies?), and by the fact that millions of people copying one work are expensive to chase down.

In terms of blogs and so on, it seems to me that copying of material is rife. The more honest websites and blogs quote or include a pointer to source, but many don't bother and the worst claim the copied material as their own. That's why a Google search for an explanation for some obscure puzzle will turn up ten websites all saying exactly the same thing, word for word, and offering no clue as to who wrote it first.

I'm not sure it happens with on-line F&SF e-zines though, because they're generally run by editors with respect for the rights of writers.

There's certainly an economic component--it's probably not worth hiring a lawyer at $350/hour for a work that you'll be lucky to make $1000 on. It's worth the risk to try it yourself, in other words, because even if you make a mistake, the mistake will cost you less than your legal fees.

But please, please, please don't make the mistake of thinking that a book can give you competence in this highly technical area of law.

You've been warned--let the lay opinions resume.

Let's not forget, reputable publishers want to make long-term relationships with their writers, relationships based upon mutual trust and respect. They won't build that with a first contract that is too heavily in the publisher's favour, or grants rights that would not normally be sold (like the copyright on characters etc that sometimes goes with comics and movies.)

Further, writing a contract takes time and lawyer's fees. Surely publishers are going to do the bulk of their business with one standard contract (or a few standard contracts that cover standard story formants and collections of rights) rather than hire a lawyer each time to screw the maximum out of the newbie writer?

SFWA has several model contracts here (scroll down), so if the contract I'm offered matches one of these, and I'm happy with it, what specific risks do I run that I need a lawyer for?

http://www.sfwa.org/contracts/

All that is about reputable publishers. There are disreputable ones too, and IIRC SFWA identifies them when possible. Seller beware.

Hiring an agent is a different issue. Agents are primarily about using their contacts and their knowledge of the markets to place the work in front of editors likely to like it, and negotiating a decent price for whatever rights are sold. Contract-wise, they or the in-house lawyer make sure the contract matches the agreement that has been negotiated.

In the internet, on-line and "stories for download" world it's somewhat different and it would be true to say I'm comfortable learning about it from books because I've dealt for several years with software distribution rights.

I believe that most if not all of what has been said so far is better than opinion ("opinion: view or judgment not necessarily based on fact" -- OED). It's fact based on informed reading and experience. If any of it is, in fact, wrong, correction would be much valued.

If reading in order to learn about complex topics doesn't work, well, I agree to differ.

I've taken courses in contract and copyright law as it pertains to me as a writer, and an editor and a researcher. I've not been called to court as a lay expert in any field, but I know where the lines of demarcation are, and when it behooves me to seek legal counsel. The fact of the matter is that now lately that rights law is in the federal jurisdiction, there's not a lot of accessible lawyers in the field ready to hand here in the hinterlands.

There are crooked lawyers, too, in the rights racket.

(2) Always have a lawyer look over a book contract.

But lawyers who work for publishers (and who create the publishing contracts) ARE doing everything they can to slant things in the favor of the publisher.

Something to consider with regard to lawyers is that many so-called "contracts" for short stories are actually considered "agreements," partly because they don't involve enough money to require a contract.

You still sign agreements, but I've heard that they can really drive a regular contract lawyer crazy.

If you are going to consult a lawyer about a publishing contract, try to find a lawyer who specializes in intellectual property contracts. If you can't, at least a regular lawyer can translate the legalese for you.

One last thing: sunset clauses are your friend. If, possible, get a sunset clause (which basically provides a deadline or expiration date for the publisher) added whenever there is something about the contract that you don't like, but can't get the publisher to change.

There is such a thing as a "lay expert" in the law. A lay witness becomes an "expert" when they are asked to give opinion rather than relate personal experience from their memory. Of course, since they are a layperson, they aren't permitted to give expert opinion on technical matters, but only on topics on which a reasonable layperson would be qualified to give an opinion--such as estimating how fast a car appeared to be going.

And you would never be called as an expert witness to testify on copyright or contract (or any other law), because interpreting law is the province of the court, and offering interpretations is the job of the lawyers. The only time "expert" testimony on the law is concievable is when you're dealing with the law of a foreign non-English speaking country under choice-of-law rules.

And the "reasonable person" standard applies to torts of negligence, not contract interpretation. The closest thing in contract law is the "plain meaning" standard--which may or may not apply. Contracts are read under a number of canons of interpretation, the priority and application of which depend on the contract itself and the facts surrounding the contract's formation.

And this is my point. There are a lot of concepts in the law that appear simple, or at least understandable, on their face. But in practice, even these facially understandable concepts are applied in ways that are totally counter-intuitive to the untrained, and are laden with enough exceptions and loopholes to make your head spin.

I'm not discouraging anyone from educating themselves--I'm just saying, for the reasons demonstrated so poignantly above, that you should not rely on your own understanding when there's a lot of money on the line.

I’m pleased to see that extrinsic’s and my statements on our understanding of the law as it applies to writers and publishing contracts have not, so far, been found materially inaccurate.

The question was, do writers always use a lawyer prior to signing a contract with a publisher? Let me reflect back what I've learned so far to see if I have the decision about when to hire a lawyer right (almost never, in terms of reduction of real, likely risks):

There are books on law, and on the business of writing, that explain contracts, copyright, publishing and media rights, libel and so forth. There are also models of contracts between writers and publishers, for example on the SFWA website and in some of the books on the business aspects of writing. If they come from a reputable source (recognized technical publisher, SFWA, etc), they are correct, at least on the day of publication. The rate at which they become incorrect depends on the (variable) degree of precision with which law is written, and the precedents that accumulate through judgments on disputes which clarify imprecise or contestable parts of the law.

In the print world, publishing contracts and copyright are well-defined because as concepts they’ve been around for a long time. The books and model contracts aren’t likely to go out of date any time soon. Nor will they change interpretation dramatically because of the volume of business that relies on current interpretations. Mileage varies according to national law and the degree of active enforcement. (Some governments are messing with copyright law in some countries, but it’s about how many years your work is protected—an issue if your copyright is about to expire, but for most of us this is a problem that would be nice to have.)

In the on-line world it’s more complicated because the technology supports mass violation of copyright, and because the internet is international in a way that the law is not. For the internet, new laws are being written, existing laws being modified, and case law is developing, so the books and model contracts will go out of date quickly. International co-operation varies and people often operate web-servers offshore to avoid strict national laws. That said, if you’re going to publish your story with an on-line magazine, there’s not likely to be enough money in it to pay a lawyer. Which is unfortunate because some online publications are not professional: some semi-pro or amateur agreements aren’t unambiguous, and thus may not be enforceable in law.

(Libel laws have been effective at stopping defamatory comments on websites and one will certainly need a lawyer if one is contemplating publishing potentially libellous material on the internet – not least because, as J hints, “publishing” has a very wide interpretation in law as regards the internet, more than a reasonable person might suppose.)

Here’s my proposal for way of deciding whether to hire a lawyer:

In print:

If you have sound reasons to believe you can build a relationship of mutual respect with the publisher, and if you understand the contract, no lawyer.

If you do not trust the publisher, or if the publisher is on one of those lists of predatory publishers, find another publisher.

If you do not understand the contract, compare it with a model contract from SFWA, or read a book, and insist on revision if necessary, until you understand and accept it.

If none of the above work, or if the contract is worth more than $100,000, or if you believe all publishers have a tendency to take more than their just dues from new writers, or if you don't understand the above, find a lawyer.

On-line:

There’s no money in on-line publishing, so do the same as for print aside from hiring a lawyer. Hope that everyone behaves with honour because even if the contract is a good one, enforcement may be impractical in law (expensive) and in reality (people copy online stuff illegally). Or be prepared to defend your copyright by exposing dishonourable copying in very public postings on your blog, predator website listings, etc.

On-line and in print

If you plan to write about other people in a manner that might cause them offence, or to use copyright material without the appropriate permissions, find the biggest, baddest lawyer you can afford. (Or read a very good, up-to-date book.)

Caveat emptor, etc, etc.

[This message has been edited by TaleSpinner (edited February 24, 2009).]

Whereas; the Party of the first part, hereinafter referenced as the Captain, being duly elected by the Compliment of Freebooters; being the Party of the second part, hereinafter referenced as the Crew; does accord and affirm, attesting to competence and capacity to do so, assumption of all Obligations, Requisites, Responsibilities, and Duties; notwithstanding Rights and Privileges thereof of common or extraordinary Practice and Custom and Habit.

Whereas; owing and due respect of the Station and Obligations of the Captain, the Crew is hereby ordered obedient to any and all posted, tacit, or implied Rules, Laws, and customs of general Knowledge, or at the express need of the instant or whim of the Captain; and whatsoever all that is not mandated, is, hereby, deemed prohibited. Respectively, to each Infraction, of Mandate infraction and/or of Prohibition infraction, for each and every all Infractions, the punishment shall and will be execution by hanging, keel-hauling, flogging unto death, or other such method of Discipline, or combined methods, as at the Captain's reasoned discretion will most elicit a best example of consequence for the Crew's discordance of Discipline and as worthy Performances for Onlookers.

There's much simpler way to decide:

1. If you have a reputable, experienced agent you trust (keeping Robert's warning in mind); you probably already have access to a lawyer when needed through your agent, coupled with the agent's experience in industry-standard agreements. No overwhelming need to hire your own counsel.

2. Otherwise, if the ip at issue is worth any decent dollar amount--$10,000 works as well as any other arbitrary amount, get help.

No matter what, don't dispose of, publish, post, or otherwise do anything with any sort of valuable property or right based on opinions you read in an internet forum. Get real help.

p.s. Inaccuracies in your and extrinsic's understanding of the law have not been mentioned in an effort not to hijack the thread. I'd be happy to discuss this in private email, if you like.

[This message has been edited by J (edited February 24, 2009).]

In my trade (engineering and management) consultants who trade on ignorance, who keep their clients uninformed and uneducated, are shunned. Those who share knowledge, who can make complex issues understandable, are regarded as valuable; by visibly not trading on fear, they earn respect--and fat, deserved fees. The really good consultants know that by sharing some knowledge for free, they can attract trust and sell a whole lot more.

In my experience of several industry sectors (telecom, IT, software, defence, consultancy, auditing, training) businesses understand the need for mutual trust and they do not set out to destroy it at the start of a business relationship with contracts that are cynically manipulative. Sure, one has to watch out for the odd dodgy supplier, and one must understand contract language and the products, services and rights that are traded, but it's not hard. I cannot believe that reputable publishers are any different. They aren't sharks and charlatans, nor do I see any specific examples of such reported in news, forums, anywhere--except the above mentioned predatory publishers that writers are constantly warned against.

If there are inaccuracies in the above posts, I'm sure all Hatrackers would welcome corrections. This thread meandered off topic long ago, so please don't feel guilty of hijacking it. But if it really bothers you, please start a fresh thread, so that anyone interested can follow it.

Your request for concrete advice makes sense, too. The problem with law is, the minute you start giving generic advice, the person who takes it and runs with it is the person who's situation is an exception to the rule. (Also, this thread started with a copyright question, which is a lot more complicated than contract law). In the law, a little knowledge is a very dangerous thing.

That being said, there are certainly some safe general guidelines, and some level of baseline knowledge every writer should have so as not to be taken advantage of too badly.

I don't mind putting something very basic together--something that, hopefully, no one can use to get themselves into trouble.
Give me a few days, and I'll start a new post.

just wondering. I havent reached the stage of publication where I should even consider a lawyer.

I would bet that very few of us have ever hired a third party lawyer to examine a home contract. Typically, you sit down and they show you where you should sign. Though this involves great dollar amounts and has great repercussions if dishonesty avails, most of us have not suffered any ill from lacking a third party lawyer. We have a realator, who acts as our agent and agrees to represent us for a standard fee (sometimes negotiable - depending on the talents of the agent). We also have a lawyer, who I believe is supposed to be impartial, tending the contract.

However, I say this in the midst of a collapse in the real estate market due greatly to sub-prime and adjustable rate mortgages. I'm sure those who have/had homes in default or foreclosure wished they had retained a third party lawyer for advice. Though I'm not sure if they could make suggestions regarding possible financial repercussions of stupid loans.

I believe TaleSpinner did suggest a lawyer for larger dollar amounts; I'm not sure of extrinsic's view on this. And I know I would definitely not bother for something like a short story. It seems that most publications are up front on whether they buy story rights. If I sold a novel, it seems it would be worth my while to let a lawyer examine the contract. Fortunately, I have a friend who is lawyer, so I would probably get a discount.

The majority of my professional dealings depend on mutual trust and professional courtesies. My income comes through nonverbal, tacit agreements to provide services in exchange for timely compensation, not even by way of a hand-shake agreement. One of my clients I've never met in person nor spoken with over the phone. Besides our very narrow professional relationship, we're complete strangers to one another. She sends me work. I do my job and send the product back. Periodically, I receive a timely payment. Nothing personal.

I expect, when, not if, I receive a publishing contract, the same level of professional conduct from the house. If the proposal doesn't appear trustworthy, then I'll veto it. Life is too short and the end too near to waste time on pointless shenanigans. I may be driven, but I'm not foolishly desperate.

Meanwhile, I've got one hundred pages remaining, out of six hundred from today's queue, to read before I sleep. Corruption is on the agenda tonight. In places high and low it never ceases.

The thread started off in copyright law, online, and that's a minefield, agreed (made worse if one gets into libel). Somewhere it moved into print and publishing contracts, and I believe that's an order of magnitude easier, and that the SFWA model contracts page is a good starting point.

There's another point I neglected to mention, which is that the lay expert should be aware of when they become out of their depth and should call in an expert.

What is a contract (and associated general information)
Common boilerplate language and what it means
Clauses to watch out for
What is a copyright (and associated general information)
Licensing--what it means and what it does

Are there any areas not covered above that anyone would like to see?