Challenge,  On Writing,  publishing

The Magic Bakery: An Epilog

June 16, 2017 /

Epilog: A Comment Reminded Me…

I used to wonder what rights I could sell to my fiction. What exactly those rights were all called. I thought for the longest time there were rules and I just couldn’t find the rules or the secret door to go through to discover where those rules were posted.

I think all of us feel that way early on because we don’t understand the true nature of copyright when we start writing. In fact, most writers, even though they will spend years writing, don’t have a clue what they are trying to sell or license. And won’t spend one minute trying to learn it.

Let alone the real nature of copyright, the deep down nature of it. That takes time to really understand.

So the truth? There is no magic list of what you can and can’t sell in your copyright. Or what the names are of those magical things you slice out of your copyright pie.

And there are certainly no rules.

NONE.

ZERO. ZIP. ZILCH.

It took me some time to realize that as well.

I wanted to know what exactly First Serial Rights meant and First Anthology Rights, or Non-exclusive Anthology Rights and so on and so on, not realizing those are just made-up terms for contracts to help two parties define exactly what is needed.

And the reason those terms are used regularly, if you actually look at the terms, is because they clearly define a way to slice a copyright pie.

In essence, what I am trying to say is this: To describe the piece of your copyright pie you are licensing to another person in a contract, you can call it anything the two of you agree to that will be clear as to what is being licensed.

Now I had a comment wishing I had put more “meat” in my Magic Bakery book. The person had hoped I would define all that stuff. Even if I had tried, I would be wrong for the very next contract you saw.

How can I define terms, put meat, as the comment said, in an article when the very question shows a lack of knowledge of copyright in contracts?

There is no meat past you learning copyright and understanding that you are free to define the slice of your pie in any damn way you see fit. As long as you and the person on the other side of the contract agree to the definition or name you put on it.

The Magic Bakery Book was an attempt at helping with some basic understanding of copyright and business in this new world of publishing. I put all the “meat” I could in it and still keep it at a basic level.

As a young writer, not understanding copyright, I would have been disappointed as well that the book didn’t give the secret handshake and the location of where all those terms were hidden.

Ahh, well. I knew the danger of trying to do a book on copyright in a world where writers are flat determined to not learn it.

So let me start the list of “meat” for those of you still looking for the sacred scroll of terms locked in that hidden vault in a Chicago basement. Then maybe you will understand the vault really is empty.

Example

Take your most recent Magic Pie off the shelf and get out a sharp magic knife.  Then cut out a very, very thin slice to license and in the contract for that slice you can call that license “First North American Refrigerator Magnet Rights.”

You can and should reserve “First English Refrigerator Magnet Rights” in the contract because you never know about those companies in other parts of the world. (A different slice.)

Also hold back all “Refrigerator Magnet Translation Rights.” (Yet another slice.)

And make sure you are clear in your terms in your contract that the right does not include “First North American Button Rights.” (Yet another slice.)

And make sure you say that all other rights are reserved to the author so nothing leaves your Magic Pie by accident.

Those are all real rights, folks, and if you can’t figure out what they are, just slowly say aloud the name of the slice. The words describe the slice of the pie you are licensing.

It really is that simple.

As I said numbers of times in different chapters, every pie can be sliced into thousands of slices, limited only by your imagination on how to limit a right and your understanding of the basic nature of copyright.

Hope that helps some with adding “meat” into the book. Magic Meat I suppose.

And finally, the metaphor stretched too far and broke.

———-

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21 Comments

  • JR Holmes

    June 16, 2017 at 7:43 am

    You didn’t help the user with the question about ‘meat’ very well. While you are obviously correct that copyright can be split as narrowly and specifically as the parties wish, there are the common terms that you mention like “First Serial Rights” that appear in all contracts for short stories going into a magazine. If you counterproposed to offer them “First Digest Size Serial Rights”, you would find your promising story was promptly rejected. There are norms to the way that the copyright pie can be sliced and trying to change those norms will be difficult or impossible.

    You may also have wanted to point to Kris’ post of June 14 (http://kriswrites.com/2017/06/14/business-musings-a-small-post-on-negotiation/) where she points to a change in how the largest traditional publisher is changing how it is purchasing a work. Not only are they not slicing the pie more thinly, they are asking for another whole slice they weren’t previously taking and without paying more for that.

    • dwsmith

      June 16, 2017 at 3:17 pm

      JR, sorry, don’t agree. The only reason there are common terms that a magazine has adopted is because it is what they need. At Fiction River, we buy First Anthology Rights because that is what we need. It is always in the contract. If you the writer send a story to Asimov’s and only want to sell them non-exclusive reprint rights or some such thing, they will, of course, reject you because that is not what they need for their business.

      But uniformly, there are no set standards. It is magazine by magazine, publisher by publisher and it is up to the writer to define the slice sold in the contract. Not by some made-up common standard that everyone thinks means something different.

      So sorry you didn’t think I helped. I just try to tell the truth, not mislead as your comment does. No common standard, just contract by contract with the publisher asking for what they need, and sometimes more and it is up to the writer to only give a publisher exactly what they need and define it in the contract.

  • D J Mills

    June 16, 2017 at 3:55 pm

    So: time position + territory + language + usage.= rights
    Time Position = First, Second, Third, etc
    Territory = hemisphere, country, state, moon, Mars, etc
    Language = English, French, Spanish, etc
    Usage = anything that displays text, images, such as radio, movies, books, plays, comics buttons, tea towels, etc
    Simple.
    Thanks.

    • dwsmith

      June 16, 2017 at 8:17 pm

      Wow, DJ, that is exactly right. Exactly.

      Folks, write this formula down and you will never worry about this kind of thing again.

      Thank you, DJ. Spot on the money.

    • Thomas E

      June 17, 2017 at 3:21 am

      You need duration,transferability and recoverability in there as well (duration = how long your license will last, transferability = whether they can sublicense your work, recoverability= term where you can regain your rights early)

      • dwsmith

        June 17, 2017 at 4:09 am

        Yeah, and much more in contracts. But just for the problem of naming rights, the formula that DJ came up with is perfect.

  • Dawn Blair

    June 16, 2017 at 5:02 pm

    I do remember seeing a list of standard contract terms that someone had once compiled. I want to say that I first saw it in Writers Digest, but I think I also saw it in their Writers Market. Granted, this would be about 25 years ago, but it did help me to learn the terms so I didn’t feel completely lost when someone said “First North American Serial Rights” or such thing. It certainly wouldn’t be hard, I’m sure, for you and Kris to give a quick list of common terms and what they mean (generally); in her work on contract negotiations maybe? I feel that it’s important for writers to have a basis or know how to find out what something means, or even how to negotiate it into something the do understand, otherwise writer goes off stumbling happily away with money blind to what rights they have just put up. Though the terms are “made up,” in a contract they have meaning and define a piece of intangible property. I was glad I had found a list, but it’s probably time for an update.

  • Vera Soroka

    June 16, 2017 at 7:30 pm

    So when you “sale ” a short story to a magazine, they hang on to it for a set time period and then it is returned to you right?
    I was considering writing a story for a magazine like Asimov.

    • dwsmith

      June 16, 2017 at 8:13 pm

      Pretty much, Vera. I think Asimov’s is a six month exclusive, meaning you can’t publish the story anywhere else in that time (or ahead of their publication, of course. They take what they call “First Serial” which means it can’t be published anywhere else first. But after the six months after publication, they still have the story in their magazine so that is a nonexclusive right. There are other things in the contract, but that is the basic.

      At Fiction River, since we publish every two months, we want exclusive for two months, then non-exclusive to keep it in the book.

  • Mike Lawrence

    June 16, 2017 at 10:58 pm

    The main thing I have learned from all of your writings on copyright is that it is *mine* to license, not somebody else’s. Whether or not a deal goes through, the terms of the incorporated licenses and all the riders are up to the copyright holder. Yes, that power is often encapsulated in a simple binary choice, yes or no. But “no” is a powerful thing. Just because somebody is asking for something you don’t want to give them does not mean you have to give it to them. That is an absurdly obvious statement, but a lot of writers forget that “no” is an option. When I read the terms for Amazon’s recent contest for $20,000, which included an option on future work unless I could find a better deal, I said no. (In this case, no meant simply not clicking through to the application.) Why? Because I could. Because I did not want to “win” the opportunity to have my future work optioned in such a manner that they could buy the rights for a song when I couldn’t find somebody else to give me a better deal. I chose not to look at that as a struggling writer who hasn’t found an audience yet. I chose to look at that as somebody who might, five or ten years down the road, find an audience and actually sell some books. What is happening right now is never a good reason to make a long term decision that will limit your options or give away rights to people who aren’t willing to pay for them.

    I will tell you something that I have learned running my own business for the past 18 years: no business is better than bad business. I have found this principle to be fairly independent of time or circumstance.

    • dwsmith

      June 16, 2017 at 11:10 pm

      Mike, dead on the money. Thank you.

      And you are also correct in my opinion after 50 years in business that no business is better than bad business. By a long, long ways.

  • Martin L. Shoemaker

    June 20, 2017 at 3:10 pm

    But you do have to understand what the other party thinks the words mean, and look for incongruities. This is a big part of my day job as a software developer: when two parties use the same words to mean different things, there will be trouble later. Don’t assume you agree. Be specific, and ask.

    As one example, I tried getting several editors to define what “first” rights meant. I was looking at some crowdfunding ideas, and I wanted to know if giving dictated rough drafts or finished copies to supporters would constitute first rights. The editors all agreed: it would. They would pass on that work.

    But then I tried to get them to define their reasons. They said (broadly), “If the work has been distributed to anybody, that’s first rights.” Not PUBLICLY distributed, just distributed. So I asked, “Then what about a critique group? What about two or three first readers? What about one?” They hemmed and hawed. Most of them are writers, too. They KNOW that writers are going to share with crit groups and first readers. And they know that falls under the general definition of “distribution”.

    I asked if the difference were that in crowdfunding, money changes hands. “No, I’d feel the same if it was free. If you give it out, that’s first rights.” “But then we’re back to the crit group. What about them?” No response. They were sure there was a line between crit group and distribution, but they couldn’t define what that line was.

    And that’s OK. I learned what I needed to know: TO THOSE EDITORS, crowdsourcing loses first rights. Sharing my dictation files loses first rights. I now understand what they mean when they use those terms in a contract.

    • dwsmith

      June 20, 2017 at 6:06 pm

      Yup, both sides have to agree to the definition. I have always wished there were standards, but alas what you described with a couple editors shows how little standards there are. Just agreement between two parties. Thanks!