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RE: [GWL]: Shared Rights Contract

>From what you have described, I can't tell who would have what rights.  
The contract is ambiguous and should be changed.

What does "all rights for 90 days after publication" mean?  Does that 
mean that if someone wants to reprint the article 6 months from now, but 
approaches the publisher now (within the 90 days), that your publisher 
can sell them the reprint rights?  How about if you have found a reprint 
opportunity for 6 months from now, and tell the current publisher.  Does 
the current publisher get the money?  What about if you wait 90 days and 
don't tell anyone?  Are resale rights yours after 90 days even though 
the opportunity materialized before 90 days?  Do you get the money?  If 
a reprint opportunity materializes after the 90 days, who gets the 
money?  

If the publisher has the right to use the article on the web, who gets 
the money if some third party wants to use the article on their web 
site?  It sounds to me like your publisher does.  If so, that means they 
have all electronic rights with the exception of the author's personal 
use.      

If you are allowed to reprint or broadcast your article on the web after 
90 days, at least you aren't forbidden from including it in a collection 
of your own work, or on your own website.  But the contract doesn't say 
you can resell those rights to others.  Normally, if unstated it would 
be retained, but by this point I find the situation thoroughly 
confusing.  This contract seems to be keeping everything and granting 
you certain limited things.  It should be the other way around.  They 
should spell out EXACTLY what you are selling to them; the rest is 
yours.

This publisher may not want or need "all rights" for 90 days.  Most 
magazine publishers who buy "first North American serial rights" also 
include a clause restraining other publication until a certain period 
after they have published.  That may be all this publisher is trying to 
do.  That is, they may not be planning or anticipating selling reprint 
or other rights; they merely don't want you to publish the article 
elsewhere before they have done so.  They don't actually care about all 
rights for 90 days; they just don't want you exercising any rights for 
90 days.  Perhaps.    

I wouldn't sign such a contract, because I can't understand what it 
means.  I would negotiate.  Every magazine contract I have seen called 
for way more rights than the publisher actually needed.  The editor is 
usually willing to give up unneeded rights.  However, there will be 
other rights that the publisher must have, and you will need to be 
willing to include them to have a deal.  In this case, as a first 
approximation, I would guess that what the publisher really needs is: 
1) First North American Serial Rights 
2) a restriction on publishing elsewhere for 90 days after publication
3) the right to use the article on their own web page 
4) the right to use the article in their own collection or anthology 

I would optimistically guess that they don't actually need the right to 
sell the article to others during that 90 days, so they don't really 
need all rights.  And I would guess that they just want to use the 
article in the electronic version of their publication, but don't need 
to be able to sell electronic rights.  And they may only want to be able 
to use the article someday in their own anthology, not to control all 
reprint rights.  If true, they will probably accept a revised contract 
that grants them the four points above, and reserves all other rights to 
the author.  

If the publisher is really intending to control reprint rights or to 
liscense the article generally on the web, at least you'll find it out 
when you call your editor to talk about the contract.  If so, you should 
still change this contract to reflect reality and get rid of the 
ambiguity.  In this case, the contract should read that the author is 
selling all rights to the article, with the exception that the author is 
allowed to reprint it in collections of her own, use it in further 
writings, or use it on her own website.

I think that these days, most newspapers and magazines with electronic 
versions seriously need at least the electronic right to use the article 
on the own websites.    

The 90 day restriction on your using the article is completely 
reasonable.  In fact, 6 months or even a year are generally acceptable 
as far as I am concerned.  However, I always add a "piss or get off the 
pot" clause.  "If the publisher has not published this article by thus 
and so date, all rights revert to the author."  You need this clause 
because sometimes a publisher never publishes the article.  They change 
their minds about their next few issues, or go out of business first.  
Usually, 3 months to 1 1/2 years is what most magazine publishers will 
ask for.  

Even if this publisher intends this contract to be a near-"all rights" 
contract, the clause allowing you to reuse the article yourself in 
various ways might make the contract acceptable to you.  For most of us 
these days, the need to rework and reuse our own material is the most 
important one of the continuing rights in the work, often the only one 
that is ever exercised.      

Carol Deppe
Author of BREED YOUR OWN VEGETABLE VARIETIES:  THE GARDENER'S AND 
FARMER'S GUIDE TO PLANT BREEDING AND SEED SAVING (Chelsea Green, Dec. 
2000)  (See table of contents, excerpts, & reviews at 
www.chelseagreen.com.)  

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