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Electronic Publishing and the Potential Loss of First Serial Rights

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by Ivan Hoffman, Publishing Attorney —

Ivan Hoffman

The Internet offers the publisher and the writer the freedom to post articles to a website, to news groups, or to writing groups for the purpose of critiquing a work. The question then arises whether or not such activities prevent the author or publisher from subsequently negotiating a sale of serialization rights to a hard-copy magazine. In other words, if the writer has entered into an agreement with the publisher and a book is coming out, does the fact that either the author or publisher have previously posted some electronic version of the book, in the form of an article or excerpt, preclude a deal for “serialization” rights?

The answer to the question is a resounding “Maybe.”

The reason the answer remains unclear is because the publishers and 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.

Serialization Rights Defined

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, which comes out before the book. “Second serialization” refers to rights to publish excerpts or adaptations of books already in print.

Points of Discussion in these Negotiations

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. (I am presuming for the sake of this article that the publisher is one who has acquired, via an appropriate acquisition agreement, rights from the author that would allow the publisher to exploit those first or second serialization rights. If not, then the author is the one that will be in a position to license these rights.)

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 has been posted to a website 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 or publisher 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 difficult 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 website, 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. It would be a wise idea for the writer or publisher to maintain accurate records as to exactly where the article has appeared on the Net, so that these previous exploitations can be expressly set forth when negotiating with a hard-copy magazine. This includes appearances on news groups, e-zines, websites and so on.

To Post or Not to Post

It seems to me a larger issue is presented. As publishers, it is your job to publish. As writers, it is your job to write. To fail to exploit that writing over the Net because you may be concerned about loss of future but currently unrealized rights seems a bit unwise. If a writer or publisher 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 publisher or writer is concerned about an issue that may never arise seems to defeat the entire purpose of what writers and publishers are supposed to be doing — writing and publishing.

Ivan Hoffman is a publishing, copyright, Internet law, recording, and music attorney as well as a published writer and author. He practices in the Los Angeles area. You may reach him at ivan@ivanhoffman.com or 818/342-1762.

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