A minor rant on the sale of fiction rights
Normally I don’t feel the urge to respond to something posted elsewhere with a full post of my own. But one this morning in a lit mag blog has me pulling my hair with frustration.
Oh, it’s a simple question—is it ethical to resell a previously published work without disclosing prior publication? Especially if prior publication was in a small online venue that a.) didn’t pay and b.) folded.
I had thought the answer was self-evident—NO. It didn’t matter whether the story was still available or not, it didn’t matter if the story paid in copies or whatever. It was still previously published, and you could no longer sell First Rights (unless you offered World Rights excluding North America).
I was wrong. Was I ever wrong.
You see, I started writing back in the day when you not only sent out work on paper, you only sent it to one publication at a time, and…in the first page header, right up top, on the right hand side underneath your estimated word count, you listed the rights you had for offer to the publication. First North American Serial Rights. First World Serial Rights. All Rights (not recommended!!!! even then!!!!!!).
Sometimes this little header meant you had to retype the first page, at a minimum, because the periodical that was next on your submission list would only purchase First World Rights. Or you had two manuscript copies to send out, one with First North American Serial Rights, the other with First World Serial Rights.
The requirement loosened up somewhat as publications moved into the electronic age, and the received wisdom was that everyone understands what is going on, you don’t need to be explicit.
Judging from the responses and self-justifications I’ve seen this morning, Received Wisdom was very, very wrong to assume that there isn’t a need to be explicit about what rights are being sold. Because there are too damn many people in this era of “information wants to be free” and rampant electronic piracy including the faux justifications for the use of artificial intelligence training who have absolutely no comprehension that what you are selling when you send a story around for submission is the first publication rights.
The format of the publication doesn’t matter.
The payment or lack thereof doesn’t matter.
Who publishes it—you or someone else—doesn’t matter.
Once that story goes up in whatever format, you no longer have the ability to offer first publication rights. IT DOESN’T MATTER WHERE OR WHO PUBLISHED IT. FIRST RIGHTS ARE GONE, GONE, GONE.
Yes, rights revert back after a set period in your contract…ALL EXCEPT FOR FIRST PUBLICATION RIGHTS.
How are such rights important? Well, an old story here, from Mary O’Hara of My Friend Flicka fame. Keep in mind that O’Hara first wrote My Friend Flicka as a short story. She sold it to Story Magazine because she had taken a class from the editor, Whit Burnett, who loved it. Also keep in mind that O’Hara was originally a script doctor in silent film Hollywood. She understood the nature of intellectual property rights. Burnett’s first check had a contract on the back, where signature signed over ALL RIGHTS to the story. O’Hara crossed it out (on recommendation from an agent, this was also back in the days when agents would work with short stories for certain promising folx) and handed the check back to Burnett. He laughed and gave her a second check without that restriction.
O’Hara went on to write not one but three books using those characters and that setting. If she had signed the AND ALL RIGHTS check, she couldn’t have done so. I don’t know how much she got for the TV and film rights for the Flicka stories later, but I’m pretty sure she got SOMETHING.
The other piece is that first publication rights are more valuable than reprint rights. There’s a certain cachet about said rights, and it matters to the big presses, whether literary or commercial.
Again, this isn’t something that is a moral or equity issue. It is simply this—everything you write comes with a certain set of rights connected to it. Once you sell particular rights, they’re sold and you cannot resell them unless you have a reversion clause—and First Rights is a one-and-done thing unless it comes with a geographical restriction.
Okay, that’s my lecture for today.
I’m browsing the comments on the Lit Mag News post that inspired this and am also surprised by the variety of responses: https://litmagnews.substack.com/p/is-it-unethical-to-submit-previously/
It’s not ethical to submit previously published work to those who don’t want it. The only “it depends” answer appropriate here is *if* previously published work is allowed, it depends on what rights you still have, which to your point, is a legal question not one of what the writer feels entitled to.
Speaking of STORY, I won the Harvey Swados Prize at my MFA program and Martha Foley was the judge. The story was then published in Redbook and launched my career as well as making me--for a grad student, a ton of money.