[Coco] Republishing Magazines

[Dennis Bathory-Kitsz]

At 05:10 PM 12/26/03 -1000, Alex wrote:
>How narrowly do you define republication?  Would a volume printed 
>containing exact replicas of several issues bound together constitute a 
>republication?  Would it matter if the issues were printed at half 
>size?  How about if they used some kind of plastic film rather than 
>paper?

Republication is any publication after first publication. That much is not
in dispute. My contracts have allowed first publication only. That has been
how I specified them. That means no volumes, no compilations, no half-size,
no plastic, no microfilm, no CDs, no web pages, no future info-crystals or
holo-banks. My work was not so-called "work for hire". I retained rights
after first publication.

>One may be stuck with it.  It undoubtedly depends on how the particular 
>contracts were written.  As far as the interpretation of the contracts 
>go, if they allow for unrestricted republication, I'm afraid I would 
>have to side with National Geographic or whoever else published the 
>magazine.

Only newer contracts try to be unrestricted in favor of the publishers. In
the 1990s, some contracts included clauses that were supposed to provide
for free republication in media not yet conceived, and I believe this is
where most of these suits are stuck in litigation.

There are several classes, really. The most typical are these:

..."Work for hire", which is done for the person paying, and owned by them
when the work is submitted; all rights are transferred to the paying
customer, and the original creator relinquishes everything, including a
future stake and all credit. Until the strikes of the early 1970s, much
movie music was done under these terms.
...Work for which the creator retains copyright. This had been typical in
the magazine field (and most other creative fields), and the contract
specified exactly how the material is to be used (or re-used). Re-uses
outside those listed were forbidden.
...Work as an employee. This depends on the contract, but some employee
contracts have been written to include corporate ownership of everything
created or written or designed or sketched by an employee -- even unrelated
content, at home, and on the employee's own time. It pays to read the fine
print when taking a job. (I haven't worked as an employee for 24 years.)

Now here's the real deal. Magazine publishers and recording companies have
lately been trying to accomplish two things: (1) to write all their present
and future contracts as "work for hire", and (2) to redefine all their
present AND previous contracts as including media not developed at the time
of the contract. It's #2 that is at the heart of most of the lawsuits,
where the case made is that "we would have included it if we had been able
to predict the future" (effectively turning it into "work for hire" without
actually removing the creator's own right to re-use it).

Courts have been split over #2. And in some cases, #1 has sparked lawsuits
because it is a circumvention of the protections deliberately written into
copyright law and framed as the ONLY right in the body (not the amendments)
of the U.S. constitution. Protection of authors has a long history that
predates the founding of the US as well, and the attempt by corporations to
overturn protection of individual creative rights by re-writing future,
present AND past law is pretty darn scurrilous in my opinion.

>It could be a matter of how your original contract was written, or it 
>could be that they simply felt that it was better to simply avoid the 
>issue.

Publishers are not that smart, or they wouldn't have to hire writers.

Dennis