questionable wording of rights from online magazine

[VydorScope]

Originally Posted by Gregg Bell

Here's their response to my questions about the wording.

Basically, it's your work. If you publish the story somewhere else, please credit (our magazine) as first online publication. If you don't, we're going to do absolutely nothing about it. If we venture into print, we'll contact anyone we wish to include in an anthology before doing so.

It's still vague to me! This notion supports Peter T's take, but the way their rights provision is worded they are "retaining" the rights should they decide to have a print version. They could "request" first time print rights, but they are "retaining" them.

Keep that email. You may need it some day.

[crich70]

Originally Posted by VydorScope

Keep that email. You may need it some day.

That's just what I was thinking. If you don't save it then they can backpedal later and try to say that they didn't say that or something. If you save the email though then you have it in writing (so to speak) and any potential legal problems are more likely to be decided in your favor. They may say that they won't pursue any legal action if such and such happens but people can turn on you and change their minds especially if it's a legal matter.

[VydorScope]

Personally I would have walked away, but too late for this advice, so log and keep all communications with them- forever. Log a copy of the agreement, and anything else you have.

[Hitch]

Originally Posted by VydorScope

Personally I would have walked away, but too late for this advice, so log and keep all communications with them- forever. Log a copy of the agreement, and anything else you have.

Agreed. As some of you may recall, in my former life, I was Sr. Veep of a Strategic Planning and Litigation Strategy Division. I would NEVER have let that wording stand as-was. NEVAH. It's too amorphous, and bottom line, they absolutely ARE SAYING that they retain the print rights, period. I suspect it's amorphous on purpose. There's ambiguity by amateurs, that is not intentional--that's not what that is.

So, Gregg: archive that email, and even print it out and save it in your physical files. Get it date-stamped if you can. Make sure you get all the header info. I don't foresee some future in which you come to legal blows, but nonetheless: the wording says one thing, the email says something completely different. You are, basically, precluded from selling the print rights to someone else, for all intents and purposes.

And please: don't ever agree to terms like that again. This is how people end up spilling their guts on Preditors and Editors; they don't understand the cold-hard-world reality of legal documents, and terms and conditions. I can't speak to other countries, but here in the US, we are a "nation of laws," and that knife cuts BOTH ways.

Hitch

[crich70]

Originally Posted by Hitch

Agreed. As some of you may recall, in my former life, I was Sr. Veep of a Strategic Planning and Litigation Strategy Division. I would NEVER have let that wording stand as-was. NEVAH. It's too amorphous, and bottom line, they absolutely ARE SAYING that they retain the print rights, period. I suspect it's amorphous on purpose. There's ambiguity by amateurs, that is not intentional--that's not what that is.

So, Gregg: archive that email, and even print it out and save it in your physical files. Get it date-stamped if you can. Make sure you get all the header info. I don't foresee some future in which you come to legal blows, but nonetheless: the wording says one thing, the email says something completely different. You are, basically, precluded from selling the print rights to someone else, for all intents and purposes.

And please: don't ever agree to terms like that again. This is how people end up spilling their guts on Preditors and Editors; they don't understand the cold-hard-world reality of legal documents, and terms and conditions. I can't speak to other countries, but here in the US, we are a "nation of laws," and that knife cuts BOTH ways.

Hitch

Would getting it notarized or snail mailing a copy to yourself be a good idea in such a case Hitch or would that be overkill?

[gmw]

Originally Posted by Hitch

[...] and bottom line, they absolutely ARE SAYING that they retain the print rights, period. [...]

Hitch, I agree with the sentiments of your post except the small bit I've quoted.

The sentence is:

In the event that we decide to further burden ourselves with the production of literary brilliance and expand to print, we will then retain First Time Print rights for all published works.

Note in particular the "then retain". The only sense of "retain" that fits this use is "to engage" (rather than "to hold"). Like saying: "in the event that a pipe bursts, we will then retain a plumber".

Of course their specific use of the word "retain" in this context leaves enough ambiguity that they may indeed be trying and pull a swift one so they can, in the future, say "look, we've said we retained that right", but I don't think any sensible reading of the sentence allows that interpretation. You are either holding something now that you can retain, or you are going to (try to) engage something in the future.

I still don't like it, the sentence shouldn't be there at all.

[Gregg Bell]

Awesome friends! Thanks for all the input and advice. Vincent and crich, I saved everything. Hitch, I hear you. In hindsight, the vagueness of their reply makes me more uncomfortable than the initial vagueness. That said, if the stakes had been higher, I would've walked. And I decided very consciously (with a lot of help from you guys) to give it a go. Crich, I don't think I'll need the notary and mailing. Besides, I'm sure if need be, you'll all come to Chicago to testify on my behalf, right? And gmw, your underlining that "we will then retain" points out that if it did ever become an issue, that they wouldn't have too much solid legal ground to stand on. But like you, I don't like it.

I'll keep you posted of any developments (if there are any) and THANKS AGAIN!!!

[Hitch]

Originally Posted by crich70

Would getting it notarized or snail mailing a copy to yourself be a good idea in such a case Hitch or would that be overkill?

Crich:

No, because a notary can't attest to something she only knows because you tell her is "x." (Effectively, hearsay). So, for example, s/he has no way of knowing that you did indeed receive said email from the publisher. You're simply telling her that you did. She can't attest to the actual receipt. She could attest to nothing more than that you swear, under penalty of perjury, that X occurred. That's not that useful, in this circumstance.

The grossly-misunderstood, abused and misused "poor man's copyright" of mailing something to yourself wouldn't really apply, either. Again, it simply proves that on date x, you mailed an email to yourself that you purport had come from party Y. (P.S.: in case anyone wonders, the "poor man's copyright" isn't worth the time it takes you to read this sentence, not in a court of law.)

What matters in this case are the email headers, any other metadata, etc., you can grab, and keeping copies of the emails. That's the best you can do in this circumstance.

@gmw:

Agreed; in some circles, that use of "retain" would be normal, but not in most legal documents in this day and age. Not in that sentence. They may well have meant it that way. However, a clarification would have been nice. BUT, I agree: they can't retain (keep) in sentence two what they are claiming they do not have in sentence one. So, all in, it's probably okay, but...I'm a stickler for that type of gooey wording.

Hitch

[crich70]

Originally Posted by Hitch

Crich:

No, because a notary can't attest to something she only knows because you tell her is "x." (Effectively, hearsay). So, for example, s/he has no way of knowing that you did indeed receive said email from the publisher. You're simply telling her that you did. She can't attest to the actual receipt. She could attest to nothing more than that you swear, under penalty of perjury, that X occurred. That's not that useful, in this circumstance.

The grossly-misunderstood, abused and misused "poor man's copyright" of mailing something to yourself wouldn't really apply, either. Again, it simply proves that on date x, you mailed an email to yourself that you purport had come from party Y. (P.S.: in case anyone wonders, the "poor man's copyright" isn't worth the time it takes you to read this sentence, not in a court of law.)

What matters in this case are the email headers, any other metadata, etc., you can grab, and keeping copies of the emails. That's the best you can do in this circumstance.

@gmw:

Agreed; in some circles, that use of "retain" would be normal, but not in most legal documents in this day and age. Not in that sentence. They may well have meant it that way. However, a clarification would have been nice. BUT, I agree: they can't retain (keep) in sentence two what they are claiming they do not have in sentence one. So, all in, it's probably okay, but...I'm a stickler for that type of gooey wording.

Hitch

I meant say you printed it out and mailed a copy of the email print out to yourself via the U.S. Mail. Then you would have the postmark date on the still sealed envelope as well.I agree that sending yourself an email of the email might not work as someone could alter that but I'd guess it's harder to fake a real U.S. Mail postmark.

[Gregg Bell]

Originally Posted by Hitch

What matters in this case are the email headers, any other metadata, etc., you can grab
Hitch

How do I save email headers and metadata? (I just saved the emails.)

[Hitch]

Originally Posted by crich70

I meant say you printed it out and mailed a copy of the email print out to yourself via the U.S. Mail. Then you would have the postmark date on the still sealed envelope as well.I agree that sending yourself an email of the email might not work as someone could alter that but I'd guess it's harder to fake a real U.S. Mail postmark.

@Crich:

I knew what you meant. What I meant in reply is, all that proves is that you mailed something at date Y. It doesn't prove that you didn't create the email yourself. That's why I told Gregg to grab all header info, etc.

@Gregg:

I'll let one of the nerdier-about-email experts here tell you how to get all the goodies.

Hitch

[gmw]

Originally Posted by Gregg Bell

How do I save email headers and metadata? (I just saved the emails.)

What are you using for email?

Most PC based clients allow you to save to an *.eml or *.msg file. If you're using gmail or something else then specify so someone with the experience can offer help.

Alternatively, many email clients let you "show headers" or "show source" - which show you everything, in which case a copy and paste of the results into another file.

[Gregg Bell]

Originally Posted by gmw

What are you using for email?

Most PC based clients allow you to save to an *.eml or *.msg file. If you're using gmail or something else then specify so someone with the experience can offer help.

Alternatively, many email clients let you "show headers" or "show source" - which show you everything, in which case a copy and paste of the results into another file.

thanks gmw. I did a right click and "view page source" and it gave me the headers and meta data but oddly it didn't show the text of the email in question. (It showed others though.) And so anyway I tried to copy and paste it (it was huge) and it wouldn't allow me to scroll while pasting and so with the great determination that I am famous for I gave up. (Really, I think it's kind of overkill anyway.)

[gmw]

Sounds like you must be using some sort of webmail based email - so that view page source was just the normal browser function showing the full html page (with banners and menus and scripts etc. etc.). I'm not familiar with webmail stuff, I always use a PC based client. There's probably an option somewhere ...

But, as you say, it's probably overkill anyway. It's not like the headers are likely to offer you anything other than the impression of verisimilitude anyway.

[pendragginp]

They sound to me like they don't know what they're doing. I hope it turns out to be worth it dealing with them.