questionable wording of rights from online magazine

[Gregg Bell]

An online magazine requested a flash fiction story of mine and I was going to accept but then I looked at the rights and it gave me pause. Here's the way they have the rights on their website:

(The magazine) retains First Time Internet rights for all published works. All other rights revert to the author. 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.

I wrote them saying basically if all rights revert to me after first time internet rights, how can you still retain first time print rights? And I said it was conditional on their deciding to go print or not.

I'm not that worried about it, but it just seems that everybody else's rights are clearly set out and this is so vague.

If nothing changes (with their repsonse to my email) think it'll be okay to just go with it the way they have it?

Thanks.

[crich70]

In the event that we decide to further burden ourselves with the production of literary brilliance and expand to print

It sounds a bit rudely put to me. Sort of like saying If they decide its worth their effort to print the work then they claim the right of 1st printing. Do they even have a time line on how long it will be before a contributor is notified that they want to print it in traditional media? And I agree it doesn't make sense to say all other rights revert to the author and then say if they decide to print the text later then they claim that right. I mean what happens if they don't print it right away and say 6 months later when you have had it in print they decide to print it? They could say that you violated their right to print it 1st from what I read into your posting. They should say that they claim 1st electronic rights and 1st print rights and then everything reverts back to you the author. That at least would make sense.

[cromag]

I'm not a lawyer, and I have no idea if this would stand up in court, but if they truly "retain" first time print rights without any obligation on their part to publish in print by a specific date, then you can never publish in print -- period -- if they don't.

Five years after electronic publication you decide to include your story in a print edition and, surprise, you get a note from their lawyer saying they intended to print next month and you're in violation of your contract. Wait ten years, and you can still get a note from their lawyer, etc.

Given the non-specific wording and the indefinite term I suspect it wouldn't hold up in court, but you'd still be on the hook for your lawyer's fees.

[gmw]

I presume they define "First Time Internet rights" at some point, and you are happy with that definition. It could be argued that their second sentence refers only to work submitted after the point that they "further burden ourselves with the production of literary brilliance" (in fact, I think that is the only viable interpretation), and that any work submitted before then would not be applicable. On the other hand, why have that clause there when it doesn't apply to any work at the particular time time - which would argue that they are trying to retain the right. It is definitely something that should be struck from the agreement.

I would also be unhappy with having such a cynical (or maybe it's their version of humour*) statement as this "further burden ourselves with the production of literary brilliance" in any formal contract. If it's formal, stay formal, and keep that sort of stuff out of it.


* Attempts at humour such as this one often remind me of the Simsons Barbershop Quartet episode: "we need a name that's witty at first, but that seems less funny each time you hear it."

[Gregg Bell]

Originally Posted by crich70

It sounds a bit rudely put to me. Sort of like saying If they decide its worth their effort to print the work then they claim the right of 1st printing. Do they even have a time line on how long it will be before a contributor is notified that they want to print it in traditional media? And I agree it doesn't make sense to say all other rights revert to the author and then say if they decide to print the text later then they claim that right. I mean what happens if they don't print it right away and say 6 months later when you have had it in print they decide to print it? They could say that you violated their right to print it 1st from what I read into your posting. They should say that they claim 1st electronic rights and 1st print rights and then everything reverts back to you the author. That at least would make sense.

Thanks crich. It just seems so unnecessarily vague to me. And I agree: they should just claim what they want.

[Gregg Bell]

Originally Posted by cromag

I'm not a lawyer, and I have no idea if this would stand up in court, but if they truly "retain" first time print rights without any obligation on their part to publish in print by a specific date, then you can never publish in print -- period -- if they don't.

Five years after electronic publication you decide to include your story in a print edition and, surprise, you get a note from their lawyer saying they intended to print next month and you're in violation of your contract. Wait ten years, and you can still get a note from their lawyer, etc.

Given the non-specific wording and the indefinite term I suspect it wouldn't hold up in court, but you'd still be on the hook for your lawyer's fees.

Thanks cromag. I don't think it would get to the point of lawyers, but it makes no sense to have that kind of ambiguity in their rights statement. We'll see what happens. I wrote them yesterday (8/23) and haven't heard back yet. I'll keep you posted.

[Gregg Bell]

Originally Posted by gmw

I presume they define "First Time Internet rights" at some point, and you are happy with that definition. It could be argued that their second sentence refers only to work submitted after the point that they "further burden ourselves with the production of literary brilliance" (in fact, I think that is the only viable interpretation), and that any work submitted before then would not be applicable. On the other hand, why have that clause there when it doesn't apply to any work at the particular time time - which would argue that they are trying to retain the right. It is definitely something that should be struck from the agreement.

I would also be unhappy with having such a cynical (or maybe it's their version of humour*) statement as this "further burden ourselves with the production of literary brilliance" in any formal contract. If it's formal, stay formal, and keep that sort of stuff out of it.

We'll see. I appreciate the feedback.

* Attempts at humour such as this one often remind me of the Simsons Barbershop Quartet episode: "we need a name that's witty at first, but that seems less funny each time you hear it."

Thanks gmw. I didn't see the potential interpretation of the second sentence as you did. I would lean more toward accepting that if the second sentence started its own paragraph. But as it is it is influenced by the first statement, which is all about the rights they are offering me, which implies it, as well, is about those selfsame rights.

And I read the "literary brilliance" as an attempt at humor. The whole tone of the statement was loose and hip.

[crich70]

Originally Posted by Gregg Bell

Thanks gmw. I didn't see the potential interpretation of the second sentence as you did. I would lean more toward accepting that if the second sentence started its own paragraph. But as it is it is influenced by the first statement, which is all about the rights they are offering me, which implies it, as well, is about those selfsame rights.

And I read the "literary brilliance" as an attempt at humor. The whole tone of the statement was loose and hip.

You may be right about it being an attempt at humor, but does humor really have a place in a legal contract? That's what a publisher offers when they want to print something and to include humor in a legal document doesn't seem the most professional to me.

[PeterT]

I take it as meaning that they currently do not create print editions; but, if in future they do, then and only then will they also claim First Time Print rights for all published works.

[arjaybe]

It looks like the first claim to rights is like "first serial rights" which is standard. I wouldn't give them the carte blanche they're claiming in the second one, though.

[Gregg Bell]

Originally Posted by crich70

You may be right about it being an attempt at humor, but does humor really have a place in a legal contract? That's what a publisher offers when they want to print something and to include humor in a legal document doesn't seem the most professional to me.

Agreed.

[Gregg Bell]

Originally Posted by PeterT

I take it as meaning that they currently do not create print editions; but, if in future they do, then and only then will they also claim First Time Print rights for all published works.

Thanks Peter. I agree: it's an "if and then" sort of thing (but I still have problems with it). So okay, they publish my story. Then a month later a print magazine publishes my story. Then a month later the online magazine claims first time print rights? How can they? It's already been published in a print magazine.

It's just weird phrasing.

[Gregg Bell]

Originally Posted by arjaybe

It looks like the first claim to rights is like "first serial rights" which is standard. I wouldn't give them the carte blanche they're claiming in the second one, though.

Thanks rjb. Check the next post.

[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.

[Gregg Bell]

I decided to go for it and accepted. Thanks for all the help with this. I really appreciate it.