IVAN HOFFMAN, B.A., J.D.
The answer to the question is a resounding "Maybe."
For those not familiar with the term "first serialization" rights, it refers to the exploitation in a magazine or other publication of material soon to come out in book form. The magazine either publishes an actual segment from the book or some adaptation of its contents, and comes out before the book. "Second serialization" refers to rights to publish excerpts or adaptations of books already in print.
And the reason the answer remains unclear is because, as I have previously written, ("Electronic Rights") we, the writers of the Net today, are the ones creating the "rules" of tomorrow. This is truly a new area and there are no cut and dried answers, no standards to which we can turn as points of reference.
However, let me suggest the following points of discussion with any magazine editor who may have reservations about acquiring serialization rights to material previously "published" over the Net.
1. This is the definition of "published" under the United States copyright law:
"'Publication'" is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication."It would, accordingly, appear that submission to a writing group for the purposes of critiquing only should not constitute "publication" under the law, there being no sale or transfer of ownership. Such a use may constitute merely a "display of a work." As such, the writer could certainly argue that there has been no loss of first serialization rights because there was no publication. The writer should check the FAQs of the group to verify this.
A more difficult question presents itself if the work is posted to a web site or a news group. Depending upon the nature of the posting, whether for sale, for viewing, or for "further distribution," it could certainly be argued that such a posting constitutes "publication" under the statutory definition. And for the purpose of this issue, let me assume that such a posting does in fact amount to a "publication" so that we can face the question of possible loss of rights head on.
Among the areas then to be covered in discussions between the writer and the editor interested in acquiring first serialization rights for a hard copy magazine might be:
2. Has the "hard copy" market been adversely affected? This would be a hard point to prove since the potential readership of the hard copy magazine may be vastly different than that of the Net. Even if the article were posted to a web site, there appears to be no true correlation between the number of visits to the site and potential sales of the magazine. Is the article to be a featured piece or merely one article among others? How prominent is the author? In other words, will the author's name be likely to sell magazines even if the same article previously appeared on the Net?
Moreover, the posting of the article to the Net, it might be suggested, has perhaps actually helped in the marketing of the hard copy article. By creating a place of exploitation not only for the article but for the magazine as well, it may have helped promote the name value of the writer. After all, the Net is, at this point in its evolution, primarily a marketing tool. By being able to narrowly focus on one's audience, the writer could claim that the magazine actually benefits from the prior exploitation since that same audience might be potential buyers of the magazine..
3. Keep in mind that there is nothing particularly carved into stone about the concept of first serialization rights. The ownership of a copyright is actually the ownership of a bundle of rights. As the various methods of exploiting those rights have increased with new technology, the manner in which that bundle is carved up also increases. And so, in pre-Net days, a magazine editor would bargain for these first serialization rights as the first exploitation of rights before a book was published. Now there may be a "pre-first-serialization right" that may also have to be negotiated. In other words, there may be electronic exploitation that may precede the first serialization exploitation. There is nothing incomprehensible about this new form of exploitation. It is just a new right, the same way that exploitation via videotape for example, was at one point a new right.
It takes a new bit of creativity to expand our ideas when faced with new situations.
4. In any negotiation, any number of rights can be reserved to the writer and this can be one of them. It would, however, be a wise idea for the writer to keep accurate information as to exactly where his or her article has appeared on the Net, what news groups, ezines, web sites and so on so that when negotiating with a hard copy magazine, these previous exploitations can be expressly set forth.
But it seems to me a larger issue is presented. As writers, it is our job to write. To fail to exploit our writing over the Net, which appears to be some sort of gift, like manna from heaven, because we are concerned about loss of future but currently unrealized rights, seems a bit foolish. If a writer currently has an offer from a hard copy magazine, then by all means withhold from the Net or negotiate the right to put it up on the Net. But not to use the Net simply because the writer is concerned about an issue that may never arise seems to defeat the entire purpose of what writers are supposed to be doing-writing.
© 1996 Ivan Hoffman
This article is not intended as a substitute for legal advice. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. You should consult with an attorney familiar with the issues and the laws.
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