Doing Copyright like Dolly Parton

Former lawyer offers insights on copyrights for writers

Welcome to our weekly column offering perspectives on lit mag publishing, with contributions from readers, writers and editors around the world.

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In case no one has ever told you, copyright is your most important asset as an author. If you don’t trust me, maybe you’ll listen to Dolly Parton. She turned down Elvis himself when he asked to walk away with half her rights.

The story I’m about to share is a little technical, but bear with me.

In my early days of publishing – so just a few years ago – a Big Publication accepted a story of mine. I was excited. Then I did something few writers do. I read their publication contract before signing. Was I bored? No. I used to be a lawyer before I became a writer.

My jaw dropped when I started going over the terms. This publication didn’t offer payment (fine) but felt perfectly comfortable slapping me with a totally excessive copyright clause - which they proved 100% unwilling to negotiate and is still, by the way, unchanged and publicly available on their website.

This says something. It's not that Big Publication didn’t realize it is being unfair. Big Publication doesn’t care and is hoping most authors will not realize the terms they are being offered are far from standard market practice.

But don’t panic.

Let me tell you what the standard market practice is first: When you publish a story in a literary magazine, you will usually be asked to grant first publication rights. That’s the magazine’s right to be the first to publish your story. After publication, copyright returns to you, the author. That is the standard. It’s what I’ve always been offered before and since.

Instead, Big Publication had this clause in their contract:

“Copyright to the original work will remain with (Big Publication) unless otherwise requested from the submitter, upon notification it will then be reverted back to the Author.”

(That is my bold emphasis. I don’t even know what they mean by “upon notification.” The clause is poorly drafted.)

How many writers have signed this without realizing they were handing over their copyright? With zero compensation? Forever? (Well, as good as forever. Copyright lasts for the lifetime of the author plus 70 years.)

I reached out to Big Publication and said:

“I was looking over the rights agreement and was hoping we could make a few changes:

(…) I would like copyright to revert back to the author after 19 months.”

I got a response from Big Publication with a courteous but hard No.

I pushed back. My suggestions were reasonable after all:

“Maybe there is something from your side that I am not seeing. Could you please explain what you are not comfortable with?” 

Big Publication came back a little less sympathetic this time. They said:

“If contributors want to be published in (Big Publication), they need to feel comfortable with the rights agreement. Having separate agreements for contributors is not feasible. I understand that you may not find them acceptable, and in that case, I encourage you to seek publication for your story elsewhere.”

Let me paraphrase: If you want to be published by us, you need to feel good about being taken advantage of. Otherwise, scram.

To understand just how poorly Big Publication is acting here, let me say something general about copyright. Copyright is not a single thing. It’s more like a bunch of grapes. If you create an original work of art, copyright is the power to do all the beautiful things that can be done to make that work live in the world – translate it, publish it, reprint it, sell audio rights, sell e-book rights, get it optioned so your favorite director can turn it into a tasteful award-winning feature film. (We’re thinking big here.)

But the only person that gets to do those things is the copyright owner. Who is that? You, the author, originally. But if you give it away to the likes of Big Publication, they are the ones that can do all these cool things and reap the profit. Sure, you will always be identified as the author, but you are not seeing a cent. And don’t forget you gave away that copyright for free. So that stings. (Decades after turning down Elvis, do you know how much Whitney Houston’s cover of “I Will Always Love You” racked up in sales? Twenty million. Another industry, but just saying.)

No publication should ask such a thing of an author under any circumstances. It is unfair (even if, in this case, Big Publication slightly minimized the impact by conceding the author can publish their story in a collection or anthology and that rights do revert back to the author if Big Publication does nothing with the story for twelve months. On the other hand, they have this sneaky sublicensing clause where they make money off your story although they did not pay you for it – so there’s that.)

I completely understand that short-staffed literary magazines may not have the resources to manage different contractual terms for different authors, but that is easily fixed. Have a fair contractual template. Operational issues are no excuse for exploitative practices, which is certainly what this looks like.

And by the way, I did pull that story. It was accepted three days later (no joke) by a much bigger magazine that not only published me online and in print but had me read at their launch event, paid me and nominated me for a Pushcart Prize. Oh, and their contractual terms were perfectly fair.

So, please always read your contract before signing. Do not accept any non-standard copyright clauses without excellent reason (and even then). And don’t be shy about politely standing up for yourself. There are fair publishers out there. You don’t need to settle for whoever comes your way.

(This is not legal advice by the way. I’m just sharing my story and hope it helps you advocate for yourself on your path to publication. I’ve found these websites contain good general knowledge on copyright issues for writers: Copyright Alliance, Poets & Writers and the Alliance of Independent Authors.)

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