posted
Quoted sections taken from Open Discussion group thread "What to put in my blog..."
quote:I fear new writers will see your information and think that the industry is somehow being unfair to them by wanting/expecting exclusivity
Actually, the industry is being unfair. Buying up exclusive first electronic rights for cheap while they can, with hopes that they'll make more in the long run while paying less in royalties to authors. Using first electronic rights as an excuse to keep "books" in print so that reversion clauses in contracts never take effect. It's a deplorable tactic. Thank goodness the Supreme Court recently came out on the side of author's in this debate. NYT vs. Tasini.
As we speak publishing houses are scrambling to include and define electronic rights (exclusive or otherwise), but at least they'll now have to be honest.
Writer beware, be very careful what you sign over. The copyright is ours and just as we have the right to include certain rights we also maintain the right to exclude them.
Yes, even if this means a publisher is railroading you and you have to bow out of the contract and publication with them. Not only are there plenty of fish in the sea there are more than ever these days.
I certainly have no delusions that publishers are wholesome do gooders. They see dollar signs. It's their job to see the bottom line. But let's not kid ourselves here, there is a different contract offered to writers without agents than for the writer's who have one. At least, it is my fervent hope, that agents aren't blankly signing over electronic rights.
My incomprehensible point is that electronic rights have to be treated separate from first serialization rights and negotiated as separate. If FFO is exclusively an ONLINE venue, as you say, then why include one time print rights for an anthology?
If someone can pull the wool over your eyes they will certainly try, and succeed if you let them.
Elan,
your quoted section "Huh? Like, there's a difference. Who wrote that rule?" was not about what decisions individual publishers make and spell out in their guidelines. It was strictly about the suggestion that somehow there's two types of publishing (legal kind and business kind). I am sure any publisher is going to stick to the legal side of the business when it comes to protecting their interests. JSchuler felt a need and had every right to see a difference and separate, I don't.
quote: It was strictly about the suggestion that somehow there's two types of publishing (legal kind and business kind). I am sure any publisher is going to stick to the legal side of the business when it comes to protecting their interests. JSchuler felt a need and had every right to see a difference and separate, I don't.
No, it's "publishing in the legal sense" versus "publishing in the business sense." Not legal kind and business kind. "Legal sense" is how publishing is defined by law, while "business sense" is how publishing is defined by practice. Just because publishing happens in a sense not defined by law does not make it illegal.
To break this out of the publishing racket: Tomatoes are defined, in the legal sense, as a vegetable. However, in biology, they are a fruit. The police are not going to come and arrest you if you are offering a sale of "all fruits 25% off, all vegetables 50% off," and only give the 25% discount to tomatoes. The only time the status of the tomato as a vegetable will come up is if you are dealing in a sphere the government has jurisdiction over, such as tariffs.
Back to publishing, just because the drafters of the Copyright Act of 1976 weren't prophetic and didn't include references for a medium that did not exist does not mean that publishers are required to turn a blind eye to the whole thing. Instead, publishers are going to create their own means of dealing with the internet.
If you do not like the terms these publishers put on internet distribution, that's ok. No one is going to put a gun to your head and force you to sell to them. Conversely, if a publisher doesn't like the terms YOU put on internet distribution, that's ok as well, as no one is going to put a gun to THEIR head and force them to buy. Freedom! It's a wonderful thing!
That's publishing in the business sense. It is defined by market forces, not some piece of paper drafted by a bunch of lawyers.
posted
I think it's important to realise, Edward, that once published online, it is nigh on impossible for a work to be "taken down". Examples abound: The Wayback Machine allows a view of any site through its iterations over the years and a published story would remain visible there; A Google search will regularly reveal old copy and a user can browse that copy by clicking on Google's cached link; users who link to your site may (copyright not withstanding) include some or all of a story in their link.
Thus in legal terms, when interpretation of the law is rendered as that of "a reasonable person", it would make sense to interpret any publication which requests "first online rights" to by definition exclude material that has been wholly placed on the internet in a freely available location at any time. Furthermore, as publishers do indeed talk to one another occasionally, it would seem reasonable for any aspiring author to err on the side of caution (!!) lest they unwittingly both dispose of their rights for the story in question but then also make their name unpublishable in certain markets (as a repeat offense would certainly elicit).
Wherein I think likes the reason for heated debate on your position; it's not that anyone says you can't hold your opinion on the matter, certainly the publishing industry tails the evolution of new internet practices. Rather, it's that anyone who misinterprets your position to be that an aspiring author should feel free to post their story on their website may well be in a world of trouble, not only for that story, but for their career. And it would be a shame if that happened, I'd think.
quote:Writer beware, be very careful what you sign over. The copyright is ours and just as we have the right to include certain rights we also maintain the right to exclude them.
Yes, even if this means a publisher is railroading you and you have to bow out of the contract and publication with them. Not only are there plenty of fish in the sea there are more than ever these days.
I think that this is potentially dangerous advice, especially for new/unpublished writers. Yes, you should always be aware of what you're signing. No, you should not back out of a deal because the publisher insists you take your work off your blog. That's taking an almost non-existent moral high ground that will get you literally nowhere.
posted
I certainly would take a story down from my website if I could get a deal on publishing it, electronic publishing or the real kind---but I also agree with Ben M.'s point---as is said, like pee in a swimming pool, once something's out there, it's there. (I've used the Wayback Machine to locate this or that, too.)
For the last couple of years, there have been three markets I've been willing to submit to, and since those stories now on my website failed to sell to those markets, I decided to put them up where they can be seen---come what may. (A couple of weeks ago, I got a startled query from my parents about what I was putting up.)
On contracts...a lot of what publishers put in their contracts can be defined as What They Think They Can Get Away With, and also What They've Been Allowed To Get Away With as well. Read the contract...consider what you might be signing away...but do what you want to do.
quote:No, you should not back out of a deal because the publisher insists you take your work off your blog.
My point is, you won't even get HERE (which I think is underneath what you're saying, D2.) Publishers are in the business of providing a product to the public. If the product is already provided to the public, they're not going to monkey around with that author to ask him/her to remove the content from the site, then publish it. They're going to move down their incredibly deep slush pile and choose the next best story that suits their needs.
It does make sense to read your contracts, know what rights you're selling. It's YOUR product, you get to decide. You should also keep track of when rights expire. For instance, I have a published short story whose rights I believe reverted to me just a month ago. I need to double/triple-check, and then I need to get it back out into circulation for reprint anthologies. Why not try to maximize my income from this one story?
Dean Wesley Smith has a bit on his blog about a time when he wrote a story (took him about 5 hrs) - put it out there, and then sold this right, that right, another right, on and on until he tallied it and realized he made $10,000 from that ONE story. It's a bit astounding, and some of this can only happen to people like DWS who have an established reputation, but it's a good point about owning and managing your rights to the best possible advantage of your own. On this, Edward, we're not far apart in opinion at all. But if I were a new writer, I'd go to Dean's site and check out some feedback and ideas. He has studied copyright law, certainly more than I have.
posted
That's all well and good...but, behind me, in two filing cabinets, I've got about one hundred and eighty some stories that failed to sell that first time, and that I don't think and have been given no reason to believe are worth anything, this right, that right, or whatever right. So why not put some up on a website where they can be seen by a few interested parties, at least?
If I can't get money, but can get fun, I'll go for that...damn the consequences.
posted
I am not against a publisher turning down work because they feel it was compromised online, it's their choice, I know that.
I am not against authors (new or not) posting their own works online, either, again it's their choice.
What I am against are publishers/editors/powers-that-be assuming exclusivity to something they don't own the rights to yet, as a precondition to being published. It smells of arrogance. At least, if this is going to be the practice, be upfront about it. Tell prospective writers that their work will NOT be considered for publication if it's been posted online. Of course, I maintain the opinion that it is presumptuous to presume just because someone posted online that they have "self-published" their works. If they've sold copies, yes, but if the work is there solely to be read, then no.
quote:No, it's "publishing in the legal sense" versus "publishing in the business sense." Not legal kind and business kind.
J, I don't know how others here at Hatrack feel about this, but I don't challenge another poster's choice of verbiage unless it’s within one of the F&F forums, it's rude.
quote:Furthermore, as publishers do indeed talk to one another occasionally, it would seem reasonable for any aspiring author to err on the side of caution (!!)
So, Ben, you're suggesting to would-be authors that publishers are in the habit of black listing the names of certain submitters because they're work is posted online? That it's some kind of "offense" to do so? What? Before the internet, did they check with each other first to see if the wannabe was submitting to multiples when simultaneous submissions were strictly forbidden? I'm cynical, only not that cynical, sorry.
quote:Rather, it's that anyone who misinterprets your position to be that an aspiring author should feel free to post their story on their website may well be in a world of trouble
The original poster (citing others who have already done this) is the "aspiring" writer who feels confident enough in his work to put it out there for all to see. There is no unique position of mine to misinterpret, since others obviously, are already of that mind.
Look at it like this, if you're an aspiring athlete, you're going to want your best work to be seen all the time in the hope a scout is seated in the bleachers, you're not going to wait until you learn the scout is already there. It is possible that agents and editors are surfing the web, reading obscure works, checking in on Hatrack from time to time, to see if maybe they can pull a jewel out of those. Just sayin’ it's possible.
quote:I think that this is potentially dangerous advice, especially for new/unpublished writers.
I didn't wake up one day and decide to spout this all by myself. This "advice" is already out there in legal circles. And I never said one should turn down publication because they want to keep their work on their blog, I was referring to being cautious when it comes to publishers desiring a "blank check" as it were to our electronic rights. Of course, any wannabe should seek an agent once a publisher takes an interest in acquiring any rights, so as to avoid being taken advantage of. Like I said, don't kid yourself, you will be taken advantage of if you are so desperate to be published that you will sign on to anything to do so.
quote:My point is, you won't even get HERE
KayTi, by your own admission an author did get "here", but was dropped only after it was discovered the same work was online. Now, if I misread what you posted before, I apology, but then that means a publisher knew about the author's online presence, offered to buy the story, then decided to drop him?
quote:Also, no unsolicited reprints. Like most magazines, we consider material that has appeared on publicly-accessible websites to be published, and therefore cannot consider it.
Thanks for this, Phobos. I do believe publishers have to start being more specific, considering not only what happened with the Supreme Court, but just as a courtesy so as not to waste a writer's time, when that time can be better spent subbing to houses that don't care if you're posted or not. That, if the work is good enough, they'll work around it. Publishers have worked around "self-publishing" for years, because they saw the dollar signs in the story and wanted a piece of the pie. I believe they'll be doing the same with online posts. That said, publicly-accessible websites, is still a broad statement. If Facebook requires membership to be viewed is a story posted there "publicly-accessible"? Or is it more like a private club. Is a blog a website?
quote:J, I don't know how others here at Hatrack feel about this, but I don't challenge another poster's choice of verbiage unless it’s within one of the F&F forums, it's rude.
No, you just misrepresent what other people say, and then whine when they call you on it. Obviously, that's much more polite.
Taking KDW's advice and ignoring.
[This message has been edited by JSchuler (edited February 25, 2010).]
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Wow, I'm late to this party! :-) Bear in mind I am in no wise a lawyer, but I'm slowly acquiring a decent grasp of contract language.
quote:be upfront about it. Tell prospective writers that their work will NOT be considered for publication if it's been posted online.
Most magazines post what they're buying in their submission guidelines. Here's a concrete example from IGMS.
quote:With this payment we buy exclusive rights in any language or any medium throughout the world for one year from date of first publication in the magazine, and nonexclusive electronic and/or online rights in any language in perpetuity.
If you've posted something on a blog (or FB or Myspace or where-ever) and it's been cached, then a bit of searching around will find a cache of it, even if you've taken it down. Thus the "exclusive" you've sold is no such thing and you'd be in violation of your contract.
Another key point to keep in mind is that posting something online is exercising BOTH your electronic rights (online posting) and your first world rights (first exposure to the public in any shape or form). The latter is particularly important because that's what people usually want to buy. E.g. from the Strange Horizons sub guidelines.
quote:We buy first-printing world exclusive rights for two months.
Another example from Clarkesworld, again of rights they wish to purchase which would have already been exercised by posting something to a blog.
quote:We claim first world electronic rights (text and audio), first print rights (author must be willing to sign 100+ chapbooks), and non-exclusive anthology rights for Realms, the yearly Clarkesworld anthology.
I'm sure more examples can be found online. But I think this is enough to substantiate my point, which is this: regardless of what we believe publishers should be doing, the current state of publishing means that any author who puts up their work online is exercising salable rights of a one-off nature. AKA once those rights are exercised, you can't turn around and sell them. And those rights are usually the rights people want to buy. So I, personally, will always try to err on the side of caution.
You have a legal right to exercise your story's various publishing rights. And publishers have a legal right to say, "No thanks, we only want to buy xyz rights, and you can't sell us those." (Or worse, "Hey, we paid you for xyz rights and you can't deliver - that's a breach of contract.")
posted
Actually, I originally challenged JSchuler's concept not his verbiage. He had accused me of confusing a comparison I never made. He put words in my mouth so to speak. I didn't care to comment, then it was no big deal. I felt his later comment was mocking my use of the word "kind" (I only used the word in an effort to paraphrase and thought that would be obvious) as though I didn't understand the point he was trying to make. Thus, I saw this as an attack on my choice of words. Something I was sure was not done outside of F&F. However, if I erred in this line, then I offer a full apology to JSchuler.
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quote:Look at it like this, if you're an aspiring athlete, you're going to want your best work to be seen all the time in the hope a scout is seated in the bleachers, you're not going to wait until you learn the scout is already there.
That's not really a fair analogy. While I'm sure there are ... precious few, rare "writing talent scouts," as you might put it, that's not how the business is run. 99.9% of published works were from submitted requests for publication. Sports athletes are a different enough business that you cannot really accurately compare the two.
quote:KayTi, by your own admission an author did get "here", but was dropped only after it was discovered the same work was online. Now, if I misread what you posted before, I apology, but then that means a publisher knew about the author's online presence, offered to buy the story, then decided to drop him?
You've contradicted yourself here -- if he was dropped after his work was discovered, then no, the publisher did not know about the author's online presence before offering to buy the story.
quote:Of course, I maintain the opinion that it is presumptuous to presume just because someone posted online that they have "self-published" their works. If they've sold copies, yes, but if the work is there solely to be read, then no.
I'm not sure why you put self-published in quotes. If you display your work to the public in some fashion, that's publishing, is it not? I don't like the line of thinking that because it's on a website (especially a free-access one), it is somehow less legitimate as far as publishing goes.
Put yourself in the shoes of a publisher: It is your job to produce product that is unavailable from other sources. As many people have said in this thread and the last -- if people can just as easily read from your free blog than the publisher's magazine, why should the publisher bother paying for it?
Okay, fair enough. My point here wasn't very clear. I was only attempting to associate the analogy with someone posting their own work online; as one way for them to shop their works. Or, as Robert Nowall later suggested "...I can't get money, but can get fun..."
However, as far as contradicting myself in the other quoted section, hardly. My statement was a rhetorical one.
I brought something like this subject up a few months back concerning what a publisher considers "published". I sent about a dozen notes to editors of online mags, and about half said they would consider anything published online (whether blog or password protected site) as being "published".
The other half didn't seem to care, though all were quick to point out that if the story was on a blog, then it should be taken down if they were going to buy it. I think there were only one or two who were adamant about a blog as being already published, but most said they'd take it on a case by case basis.
Not sure if this helps, but it really comes down to who is wanting to publish your work, and what they consider "first" rights.
quote:KayTi, by your own admission an author did get "here", but was dropped only after it was discovered the same work was online. Now, if I misread what you posted before, I apology, but then that means a publisher knew about the author's online presence, offered to buy the story, then decided to drop him?
"here" was meant to refer the situation where a publisher asks an author to take work down (referenced in D2's post that I was quoting from.)
In the case I'm talking about at FFO, there was no discussion of having the author remove the story from the blog. Instead the editor moved on and selected the next-highest-rated story from the slushpile. While the editor at FFO is free to make his choices each time (and I could certainly see a case where he might not mind buying rights to a reprint, e.g., an established author who can bring more eyes to the site) so are other editors, and my limited knowledge of the publishing industry says they will keep walking when they encounter a story previously published.
By all means, if you disagree with this practice, post your content to your personal blogs and submit it to editors. I'll hold out hope that my story is the next one down in the slushpile.
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KayTi, my apologies for misunderstanding your original comments about the FFO instance. I got the impression that FFO had conferred with the prospective author, found out about the blog posting, then passed on him. What you're saying is that the author in question never learned of his error (as far as FFO saw it to be)? Never knew he was passed on for the very reason you cited? Just that it happened that way and the only one wiser was FFO? That's a horse of a different color. Thanx for clearing that up.
BTW, this was never about me or what I might or might not do with my works online. Initially I thought (silly me) that I was throwing support behind someone else's plans, and cautioning folks to take care of their rights especially the electronic ones.
posted
I think I'll throw some more chestnuts into the open fire. What are the SFWA rules for publication...does putting something up on your own website count as publication under those rules...does it count as professional publication?
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posted
Edward, I believe you are being sarcastic, which you have to know doesn't carry very well in text-only online environments.
I am not the FFO editor-in-chief, just one of the staff slush readers/editors. I don't know what conversation did or did not transpire between editor and author in the case I've described. I believe it went something like, "dude, we were going to buy your story but you've got it on your blog. Bummer." Because we do reply to everyone who submits a story, with a contract for publication or a rejection. But I have no direct knowledge. Out of curiosity (why, I don't know, but I am curious) - does it matter whether the author is conferred with or not?
From the staff editor end, it went something like, "Hey guys - that one story we were going to buy is already online for free, so I'm going to select xyz story for that slot instead." (from the EIC to the rest of us chickens.)
My point was there was no give-and-take for the author to go through. No negotiation about taking down the content. This is not unique in the industry, but I'm giving one specific one-time tangible situation as an example. Sometimes on Hatrack we get caught up in what people believe editors would or wouldn't do.
Apologies if I've assumed the statements you've made were in reference to what you might or might not do with your works online.
I wasn't being intentionally sarcastic, but I suppose I can see how some of my word choices made you feel this way.
But I'll go back to your original post in Open Discussions to try to clarify why I interpreted it one way.
quote:At [FFO] sometime in the last year the editor was planning to buy a story...and he discovered the work was freely available on the author's blog...
When I read "he discovered" and you did not quantify that with how, then I guessed (from other information you provided) that the editor got the information from the author of the story he was going to publish. If he found out through a third party source (like googling the title) that wasn't made clear. I called it as I saw it.
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I think the EIC googles key lines from stories before paying authors. Good general practice, as it prevents plagiarizers from being able to foist off someone else's published fiction as their own, inasmuch as the fiction exists online somewhere. But I don't know.
Counterpoint, though - I think authors worry more about being plagiarized than actually happens. I went to several writing programs last week and three or four times the subject of how to protect one's copyright came up. Cart before horse! It's so easy to check for plagiarism now I'm always astonished when I hear cases of it. But cases do pop up. There was a list going around a while back of one particular author who submitted (and was getting paid for/almost getting paid for) stories written (and published and available online where it's easy to google them.) Editors were *mad*, not to mention the original authors.
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