Most freelancers sell their work on a “first rights” agreement.
That was true when I sold the now-defunct Birmingham News “Sunday Magazine” an article it published June 9, 1957. The story was about two afternoons I spent with Nobel Prize-winning author William Faulkner at his home in Oxford, Miss.
Editor Jim McAdory paid me $25.
Years later, I’ve recycled that experience into expanded articles in The Indianapolis Star, Author and Journalist Magazine, and Faulkner Newsletter, and a narration on NPR’s “All Things Considered” in 2001 for the 75th anniversary of Faulkner’s first novel.
Fast forward 41 years to 1998.
Thomas Inge, a Faulkner scholar from Randolph Macon College in Ashland, Va., was searching the Web for Faulkner’s anthology, “Conversations with William Faulkner.” He found my article and contacted the Birmingham News.
The News marketing people replied to Inge with various restrictions about use of my article, which they promptly copyrighted. No attempt was made to reach me, although my wife and I own a farm in the next county, have a postal box and are listed in the local telephone book. Our main address is Muncie, Ind.
The News demanded Inge pay $100 to reprint my article in his 1999 University Press of Mississippi book.
While surfing the Net, I discovered the publication. Having lived in five cities in three states since selling the piece, I no longer had the original manuscript and probably didn’t label it “first rights only.”
I telephoned an Alabama attorney who said it would “cost several thousand dollars to research the copyright.” The copyright adviser at the Ball State Library in Muncie, where I used to teach, said, “Forget it. You’ll get mixed up with lawyers.”
Freelancer Mark Masse, a colleague at Ball State, suggested I write the publisher.
I wrote News publisher Victor H. Hanson III, asking for an apology. I also requested that he discuss “first rights” with his marketing people and that he send me $100.
A month later a letter arrived from Thomas V. Scarritt, editor of the Birmingham News, saying they hadn’t investigated my rights status and did not admit my “allegations were correct,” but they were happy to pay me $100 to resolve my complaint.
He included a disclaimer, saying, “By cashing it you agree to release The Birmingham News, the book publisher, the author and any other parties involved in the publication of the book … from any and all claims you may have now or in the future (e.g. reprintings, etc.) in connection with material that appeared in that book.”
The moral to this story is keep careful records and check the Internet sooner than the seven years it took me to find my article in a wonderful anthology with 38 other writers including Hamilton Basso, Laurence Stallings, Joe Hyams, Roark Bradford and the editors of Time and Newsweek.
An attorney’s commentary
Fred’s admonition to keep careful records and check the Internet are well placed. But some preventive medicine also will serve freelance writers.
Under current law, a freelance writer holds the copyright for the piece he or she produces. That copyright is automatic and does not require formal copyright registration. However, it’s best to memorialize that fact in a contract with the publisher.
When a freelancer holds the copyright, it is the writer who can control republication and distribution, including having the article appear on Web sites. A fairly recent U.S. Supreme Court decision affirmed that freelancers hold electronic rights as well.
Contract law really is the key here. A contract can change who owns the copyright of nearly everything. So writers should be careful in signing any contract, release or other document offered up by the publisher.
Yes, a publisher may choose to pay an additional amount to secure the copyrights, although in this case it seems unlikely that the condition on the Birmingham News’ payment to him would bind Fred vis-à-vis any party other than the News.
