If a magazine publishes an article without an explicit copyright notice for that article, who owns the rights, the author or publisher?
It will depend on the rights sold by the author. Some (not many, but some) magazines insist on purchasing “all” rights when they buy an article from a writer. Others ask only for “first” rights. Still others don’t even request that.
If the writer is under contract to the magazine, it will depend on what deal he worked out with the magazine when he signed his contract.
TV
TV TV is correct. Usually the author sells what’s known as “First North American Serial Rights” (in the U.S., at least). “Serial Rights” is the legal term for the rights to be used in a serial (i.e., a magazine). The term means that you grant the magazine the right to be the first to publish that work in a magazine in North America.
You can also sell “Second rights” to a second magazine (subject to conditions in the contract with the first magazine). This can only appear after the first publication.
Some magazines now buy “First World Serial Rights” or just plain “First Serial Rights” to allow them to publish the work first.
However, in some cases, magazines buy all rights. An author should avoid this; it means you can’t resell the work and, worse, if the work is resold, you don’t get a cent. Oddly the magazines that buy all rights are likely to pay you nothing buy copies for them. A bad deal.
Traditionally, the copyright notice of the magazine covered all stories appearing in it against infringement, but a court case a year or so ago ruled that that wasn’t protection. This was probably the most egregious misreading of the law ever and the case it being appealed.
If you’re a staff writer, your work is usually consider “work for hire” and the magazine owns the copyright unless you make other contractual arrangements.
Thanks for the replies.
How about in the situation where the magazine does not pay for the articles? No contract was signed or anything.
The rights start off belonging to the original creator of the work. It is only as part of a signed contract that he or she transfers those rights to the publisher. If there is no contract, there is no transfer of rights, so they still belong to the creator.
SmackFu is completely correct unless there was some sort of oral agreement between the writer and publisher.
While the old Goldwynism of “an oral contract isn’t worth the paper it’s printed on” is true, it is worth more than nothing at all.
If the writer at one time said to the publisher something like, “It’s all yours. I don’t want anything to do with it any more,” the publisher could easily argue that he has some rights to it.
TV
In addition, most magazines indicate what rights they buy in market reports and other places.
Also, there has to be some sort of agreement; the magazine has to contact you to say they want to publish the work. You should get some indication of what they’re buying at that point.
As far as your rights are concerned, without a contract, they’d be hard-pressed to prove you sold them all rights. A document* is required to show transfer of copyright; without that document, they can’t claim ownership. They also can’t legally claim it’s a “work for hire” unless they can prove you’re an employee (i.e., at the very least, you’re getting a regular salary from them).
Can the magazine get all rights for nothing? Sure. In fact a lot of small presses ask for all rights and only give contributor’s copies in return. But there has to be something that indicates they want all rights, and there should be something – even if it’s only a letter – that states they are taking them. (Mad Magazine used to buy all rights to submissions and put the contract on the back of their checks, so when you endorsed the check, you agreed to their terms.)
*There is no legal requirement for the form of this document, just language transferring ownership.
Two legal points have to be clarified. Oral agreements are subject to “the Statue of Frauds.” This means that all such agreements must be in the written contract, if the contract involves a certain amount of money (usually $500 - depends on the State) or if it involves real estate. The exceptions I know are: partial fulfillment of the contract, showing that such a contract was entered into, and a memorandum of the promise. That doesn’t apply here, as there is a contract, but you want to show that rights were sold. So if the writer said that it was all the publisher’s, without a written memorandum of that, that promise is not enforceable.
The other legal point is valid consideration for a valid contract. Can the publisher get the rights for nothing? No, unless it can show it was a gift. Otherwise, he must show the quid pro quo.
Thanks for the replies.
The reason I asked is about a small circulation magazine called Word Ways. They’ve published several of my articles but don’t pay for them. In fact, the circulation of the magazine is so small that I doubt the publisher (Ross Eckler) makes any money, either. We’ve never had any discussion about copyrights, except once when Ross wanted to republish a couple articles in a book. He asked me to send him written permission, which I did.
However, Ross has posted some articles (not mine) at the Word Ways web site and the copyright notice on them is for him, not the author. This made me doubt that I still owned the rights. I have put several of my own articles on my own home page, and wasn’t sure whether I owned the copyright or not. From what you say here, I do.
From what you said, I would tend to think you retain the rights, but a great deal of that will depend on what you said in that permission you sent to him.
TV
I gave the publisher of the book (which was not Ross) “permission to reprint any of my articles published or submitted to Word Ways”. This did not assign the copyrights to anyone, and for that matter, should not have given reprint permission for articles not submitted at that point, since I used the past tense and made no allowances for future submissions. But IANAL, so this last point could be wrong. Or at least debatable in court (not that I plan to take this to court or anything). AFAIK, the book has not been published yet.
It sounds like he does have the permission to put the articles on the web page (one reason to make sure you’re clear when granting permissions). But that does not give him the copyright. You’d need to have written him saying you transferred the copyright to him.
A lot depends on how the copyright on the web page is worded. He can say “these pages copyright by me” and only be claiming a compilation copyright – no one can take all the matter and reuse it. But if he’s claiming copyright specifically on your articles, he’d need to have that transfer.