Q. Shouldn't publishers be able to obtain the copyright for all the articles we publish? After all, we're paying for them.
A. Article I of the U.S. Constitution granted authors ownership of their work: "The Congress shall have Power ... To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." In 1976, Congress affirmed that writers own copyright unless expressly transferred. Freelance writers' stories are their livelihood, and they depend financially on the ability to publish certain articles in multiple venues. Writers commonly grant "first North American serial rights" to magazine and periodical publishers.
Q. But if writers place these stories in our competitors' publications, that undermines the value we bring to readers. Why should the competition benefit from our investment?
A. First publication of a story is, by far, the most important one. Also, few publications would wish to purchase an article that has appeared in a directly competing publication. If they're worried about the competition, publishers can negotiate for a temporary period of exclusivity or request that the original publisher be credited if the story appears in later publications (benefiting the original publication by improving its visibility among nonreaders).
Q. But if writers keep copyright, how can we post their stories on our Web page, or re-sell the stories to sister publications and to our foreign editions?
A. Publishers don't need copyright to do this if the writer grants permission. Typically, in exchange for this permission, the contract includes some additional compensation to the writer for these uses. Putting a story on the Web or publishing it in secondary markets both lead, directly or indirectly, to more income for the publisher. It's reasonable that the writer receive some of this income. The Author's Registry, a nonprofit clearinghouse, makes accounting for secondary uses easy by tracking them arranging payment to authors.
Q. Most freelance writers we use don't object to our "all-rights" contract. Why should we go out of our way to accommodate the minority of writers who make an issue out of this?
A. Because you'll be able to hire better writers. Most experienced writers typically reject such contracts. When they do sign all-rights contracts, they may feel less committed to the work, and to the publisher. Less experienced writers often choose not to challenge such contracts only because they are reluctant to lose work.
Q. Our lawyers advise us to obtain all rights from our freelancers to avoid being sued by them for somehow violating their copyright. They also want writers to be contractually responsible for legal expenses that result from someone suing us over freelancer-written stories. Doesn't it make sense for us to protect ourselves in these ways?
A. Writers can't win a copyright infringement judgment against publishers unless a contract has been violated; the best way to avoid a copyright lawsuit it to keep to the terms of the contract. And asking writers to indemnify publishers is asking them to assume a level of risk that likely far exceeds the income they'll earn from the story. Affordable libel insurance for freelancers is virtually nonexistent, and it's unreasonable to ask them to also assume the publisher's risk.
National Association of Science Writers February 2006
