Magazine Article Rights

[mmadsen]

In the gaming industry, or in publishing in general, what rights does a publisher usually demand? Is it standard to demand exclusive rights to all work and all derivative work before publishing an article?

For instance, KenzerCo's submission guidelines spell out their legal assignment document:

ASSIGNMENT AND RATIFICATION OF TRANSFER

1. I, ____________________, an individual residing at _________________________________, herein referred to as "Assignor," hereby grant, transfer and assign to Kenzer and Company, an Illinois corporation, with offices at 25667 Hillview Court, Mundelein, Illinois 60060, its successors and assigns, all right, title and interest in and to all work and materials relating to Assignor's creative work known as _________________________________________________ including the copyright, patent, trade secret rights and all other right, title, and interest therein and consisting of all existing written materials relating thereto (collectively the "Works"). This exclusive grant of rights shall include, but is not limited to, the rights to publish, reproduce, transmit, adapt, prepare derivative works, sell or otherwise make use of the Works (including all subsequent additions, revisions, supplements to and versions of the Works, regardless of length or nature) throughout the world, in any form or medium and in any language, and to license or otherwise transfer to others the rights commensurate herewith in connection with the Works, for the entire term of the copyright or patent, including any renewals and extensions.

2. I hereby grant Kenzer and Company, its successors and assigns, the right to file copyright or patent applications in the United States and throughout the world for the Works in the name of Kenzer and Company, its successors and assigns. I hereby agree that Kenzer and Company, its successors and assigns may act as attorney-in-fact to execute any document that Kenzer and Company, it successors and assigns, deem necessary to record this grant with the United States Copyright Office, the United States Patent and Trademark Office or elsewhere. If requested, I agree to execute any and all copyright, patent or trade secret documents requested by Kenzer and Company, its successors and assigns. The cost of recording and registering ownership rights in the Works shall be borne solely by Kenzer and Company, its successors and assigns.

I hereby confirm that this assignment of rights is fully supported by consideration that I receive in the form of salary, royalty payments or other compensation.


Date: Signature: ________________________________
Printed Name: _____________________________

STATE OF _________________
COUNTY OF _______________


Is that typical? What does Dragon magazine do? If someone creative, like SHARK, wanted to publish his gameworld, would he be expected to hand it over?

 

[RangerWickett]

Yes, usually he would, unless the publisher knew that his book would be a phenomenal seller. It's just a huge hassle to only have rights to sell a book, yet not have rights to the whole thing.

If Bob Smith published his setting with ABC Games, (Bob's World of Fantasy) things would normally be fine if that's the only book he plans to write on that topic. But say that the book is fairly successful, so ABC games decides to write a few extra sourcebooks for the setting. They ask Bob Smith, but he refuses, and says that he doesn't like what they have in mind for his setting, and he doesn't want them to use it anymore.

Now, if Bob still held the rights, this would be bad for the publisher, because they'd have a hard time doing a second printing of Bob's World of Fantasy, and they'd certainly have difficulty if they wanted to continue the product line. Bob could sue them even if all they wanted to do was reprint some of the material from Bob's World of Fantasy in a different book. This basically means that even though ABC Games went to the trouble of producing a book and marketing it, they can't sell it anymore.

If ABC Games held the rights, Bob's out of luck. He might not like what ABC Games is doing to his World of Fantasy, but he can't stop them. He can tell all his friends and fans what ABC Games is doing, but legally, it would be the company's right to keep publishing those products.

Even though I'm both a writer and a publisher, I side more toward the publisher's rights. If the writer is any good, he probably has a LOT of good ideas, so losing one won't necessarily kill him. On the other hand, if a company is already making money on a product, it is unfair to them to force them to stop producing that product. The needs of the many outweigh the needs of the few.

If a writer really wants to publish a setting but keep the rights to it, he'd need to license it. He would have to first obtain legal rights to the setting, then grant permission to the company to publish certain aspects of that setting. For example, Wizards of the Coast does not have full rights to Star Wars, which is still owned by George Lucas. They simply have the licensing rights to publish particular books about the setting.

Now, this might seem a little grim for the writer, but honestly, most publishers are nice folks. If you want to make sure they don't write anything without your feedback, the company will usually listen, unless it would be financially disastrous to do so. In the worst case, you'll lose your cherished world, something that you invented and worked hard on making your own, but looking at even a handful of well-selling authors in this genre, you'll see that most have several settings. Yes, it's hard to lose something you love, but if you want to give it a chance to be seen, you need to be canny about it. Get a feel for the industry first, and for the publisher you want to work with, and then talk to them, sincerely. If your idea is good enough, and I mean really really good, the publisher will support you, but in many cases, it's just easier to let the writer keep his 'baby' and have him write something wholly new. It's less of a legal headache, and it inspires creativity.

That's my perspective, and mind you, I haven't been doing this too long.

 

[mmadsen]

You've addressed part of the issue, RangerWickett, why the publisher wants/needs rights to derivative work, but why do they want/need exclusive rights? Aren't the exclusive rights generally worth more to the writer -- it's his baby -- than to the publishing company that just wants a magazine article or an adventure module?

It seems odd that a game magazine could say, "Sorry, we own the SHARK Ogre, Orc, and Hobgoblin; we published them in our monster column after all. Come up with new enemies for your game world."

 

[Morrus]

You've addressed part of the issue, RangerWickett, why the publisher wants/needs rights to derivative work, but why do they want/need exclusive rights? Aren't the exclusive rights generally worth more to the writer -- it's his baby -- than to the publishing company that just wants a magazine article or an adventure module?

It seems odd that a game magazine could say, "Sorry, we own the SHARK Ogre, Orc, and Hobgoblin; we published them in our monster column after all. Come up with new enemies for your game world."

I'm confused - there would be nothing stopping him for using them at home in his own game. That's why they're published, after all - so people will use them at home in their own games.

He wouldn't be able to publish them himself (OGC factors aside) - but then, what publisher wants their writers publishing material from their books elsewhere? That means less people buy their book.

 

[Orcus]

It is standard practice for a publisher to purchase the work as "for hire" and to obtain all rights.

Clark

 

[The Sigil]

Specific beef...

He wouldn't be able to publish them himself (OGC factors aside) - but then, what publisher wants their writers publishing material from their books elsewhere? That means less people buy their book.

Well said, Morrus, but as a writer, I would have one beef... why does the publisher want exclusive rights to publish derivative works for my book?

Specifically, what happens when the publisher decides to kill a setting and I decide I want to do more sourcebooks myself? Assuming that I do not republish material they have already printed (which would arguably cut into their profit margin), why do I have to go back to them to get a license to sell/write stuff that they never intend to publish in the first place (and therefore cannot possibly hurt their profits)?

I see both sides of the issue, and in some ways I have to side with neither the publishers nor the writers... drop the thing into the public domain after 14 years (as the framers of the Constitution clearly intended - since that was the term they themselves chose) and let *anyone* (including the original author) work with it. THAT serves the greatest good... the needs of everyone BUT the publisher outweigh the needs of the publisher just as the needs of the publisher supposedly outweigh the needs of the writer.

--Spencer "The Sigil" Cooley

 

[Morrus]

Well, the property itself is going to develop a value, and that value will be because the publisher has invested hard cash into it. The publisher could choose to resurrect it at any time, or to sell the rights or whatever.

Take Ravenloft for example. It only has a value because TSR established the product line, advertised it, sold it. Plus they printed it, had it distributed. In other words, they invested in it.

Now they have chosen to license the property out. In this way they profit from their investment. If their power to do this was diminished, they'd be making less of a return on that investment.

Why would a publisher ever choose to invest in a property to which they didn't hold such exclusive rights when they can easily find another to which they do? Unless the property already has a significant value already (Star Wars, CoC), the author isn't giving them anything they couldn't get from a million other sources. Good ideas are ten-a-penny.

 

[mmadsen]

One issue here is that the publisher is generally paying per word, but the he is buying the right to publish the article, the right to keep anyone else from publishing the article (the exclusive right to publish the article), the right to publish derivative works, and the right to keep anyone else from publishing any derivative works.

If he's buying (and paying) for lots of words (e.g. a worldbook), this might be appropriate. If he's buying a magazine article or an adventure module, he's only paying for a few thousand words, but he expects to own all derivative works.

Is there a clear definition of "all derivative works", because it sure seems like a lot could derive from one article or adventure.

What would qualify as derivative works of SHARK's Orc? Or the collection of his Orc, Ogre, and Hobgoblin?

 

[Morrus]

Is there a clear definition of "all derivative works", because it sure seems like a lot could derive from one article or adventure.

It's about as a clear as a muddy thing on a prticularly cloudy night. Certainly not something that could be dealt with in a messageboard thread.

 

[mmadsen]

It's about as a clear as a muddy thing on a prticularly cloudy night. Certainly not something that could be dealt with in a messageboard thread.

Surely someone could give some examples though, right?