A Costly All Rights/Electronic Rights Issue
With Feedback from Industry Professionals
Who Preferred Anonymity
An historical case study of a copyright and contract negotiation issue about All Rights vs. electronic rights that Barbara Brabec and many other professional writers and designers encountered when craft consumer e-commerce sites began to spring up on the web at the turn of the century. An issue that remains problematic in all areas of publishing today.
Beware of the “All Rights” Contract Clause
IN FEBRUARY OF 2000, I accidentally lost a column I had been writing for Crafts Magazine for more than twenty years because of the All Rights clause in my contract that included electronic rights.
It all started in January when I signed an exclusive writing contract with IdeaForest, one of the new craft consumer e-commerce sites that opened on the web that year. I agreed that, for a specified length of time, my craft writing services on the Internet would be exclusive to this particular website. I would retain the copyrights to my work and license its use to IdeaForest for as long as they wanted it (similar to the publishing agreement all writers sign with trade book publishers).
When I signed this exclusive contract, IdeaForest did not know I had been selling All Rights to my Crafts column, nor did it occur to me to even mention this fact. So far as I knew then, I was merely contributing content to a print magazine that could not in any way be considered competitive to IdeaForest’s e-commerce craft site. What I did not know at that time, however, was that Crafts Magazine had agreed to participate in a competitive e-commerce website, and their plan was to publish similar material they had purchased on an All Rights basis from their columnists.
In discussing this situation with both of my craft editors, I discovered just how tricky an All Rights contract clause can be in this new age of electronic publishing. My editor at Crafts said she had no intention of republishing my columns on the website because its business content was not in keeping with other material on the site. But my editor at IdeaForest warned me that if Crafts Magazine should ever change its mind and republish any of my columns on its website, I would automatically (though indirectly) be in violation of my contract with IdeaForest.
The very fact that this possibility existed meant that I had to ask Crafts to modify my contract so I could retain the electronic rights. Because I had often been told that my column was the most-read column in the magazine, I figured I had some “wiggle room” here. Surely, I reasoned, an exception would be made in my case since I did not fit the standard “designer mold,” and my articles had no value to the competitive website. But I was wrong.
So Long, Good Luck
A COUPLE OF DAYS after discussing this problem on the phone with my editor at Crafts, I received an impersonal email saying, “Sorry you can no longer write the column; good luck.” That message was like getting a bucket of cold water in the face! No further discussion, no “let’s see if we can’t work around this problem;” just, “So long, it’s been good to know you.” (A few days later, however, I did receive a bouquet and a card from the magazine’s staff saying, “Thanks for more than 20 great years.”)
I don’t know who was the most upset here: my editor or me. In the end, neither she nor I had a thing to say about this problem because it was the lawyers who made the decision to let me go without a moment’s thought. And that’s when it really hit me: It was the lawyers who were running the crafts industry then (probably still); or perhaps it would be more appropriate to say ruining it.
Who Would Have Dreamed . . .
PROFESSIONAL WRITERS in the nonfiction field first encountered the electronic rights issue in the mid-nineties when both the consumer and trade magazines they were writing for began to put the whole content of back issues on the Internet. This was done in spite of the fact that most of the articles in those issues had been originally sold to them on a First Rights (one-time use only) basis. Many writers were shocked to discover their copyrighted articles floating on the Internet when they had sold only First Rights to the magazines in question. I don’t know how most professional writers are handling this problem today, but I’m sure the amazing growth of the Internet and the flagrant disregard of copyright laws by both publishers and individuals has greatly complicated writers’ lives and made it more difficult to earn a living from their work.
Although craft designers had been signing All Rights contracts with Crafts and other magazines for years (it was either that or not be published in the magazines), none of us ever really understood until the turn of the century just what the control of electronic rights actually meant in terms of dollars. Who would have dreamed in 1999 that so many craft consumer e-commerce sites would suddenly spring up on the web in the year 2000? Like designers, I had been selling All Rights to my column for years, but I never perceived this to be a problem because I knew I could always reuse the kind of information imparted in my columns simply by writing about a topic in a different way. (I was told it wasn’t so much the content itself that was copyrighted by the magazine, but the way it was formatted and presented to readers.)
In 1998 when I was invited to be a guest columnist on the Crafter.com website, I was delighted when Crafts gave me permission to reprint some of my “Selling What You Make” columns there. I wasn’t making any money from this and the magazine wasn’t making any money from this, but readers who had missed my columns when they were first published in the magazine were benefiting. But in 2000, when this electronics rights issue surfaced, all those articles had to be removed from the web because the magazine column they once promoted had now been taken over by another writer (who didn’t last long).
LET ME EMPHASIZE HERE that I had no hard feelings for my editor at Crafts. In truth, my ire was directed to the lawyers whose primary consideration was bottom line profits and not the continued growth and development of the crafts industry or the individual writers and designers who were fueling it.
I wasn’t the only writer in the crafts industry who was caught up in the electronic rights problem and had to make an uncomfortable decision about whether or not to continue to sell on an All Rights basis. Other personalities on the IdeaForest site, as well as designers who had their own websites, were finding they could no longer work with Crafts and other magazines as well because suddenly all the magazine editors were getting insistent about retaining both the print and electronic rights to projects and articles without any additional payment being offered.
Crafts magazine was later sold, and I have no idea how the magazine works with writers and designers today, except that I know the format of the magazine changed dramatically under its new ownership and the best craft designers in the industry stopped working with them.
I’m sure the lawyers who were controlling contract policies for Crafts at the time I and others first ran into this problem had no idea of the national following its contributing writers and designers had, and how our disappearance from that magazine’s masthead would eventually impact subscription or newsstand sales. The lawyers who were dictating policy to the editorial staff apparently couldn’t they see the direct connection between bottom-line profits and the caliber of writers and designers on a magazine’s masthead. Couldn’t see that, as more and more professional writers and designers were forced to leave a magazine because of its electronic rights contract demands, they were going to take their reader following with them to their new home, be it a competitive magazine or another site on the web.
For me, the strangest irony of all was that IdeaForest would have been happy to reprint my Crafts columns on their e-commerce site because I was one of their featured “personalities,” and this kind of mention for a print magazine could in no way be construed as promotion for a competitive e-commerce site. In short, this was a LOT of lost publicity for lawyers’ refusal to simply give me electronic rights to material they didn’t even have a commercial use for. What a perfect example of that old adage about “cutting off your nose to spite your face.”
Telling It Like It Is
HAD THE LAWYERS at Crafts granted my simple request for ownership of electronic rights, I wouldn’t have discussed this problem publicly. The fact that they did not, however, coupled with the fact that I’ve always felt it was my responsibility as a leader in the home business industry to help educate others, prompted me to share the details of this experience on my website. It’s a perfect example of how something that once seemed simple suddenly became complex when the crafts industry took off on the web.
Without designers—who were getting the short end of the stick for years—the crafts industry is nowhere. I pointed out in 2000 that, with the incredible growth of the World Wide Web and the way craft consumers were flocking to e-commerce sites, it was time for designers to take a stand. The best designers then and now—particularly those with a growing presence on the web—can no longer justify selling both print and electronic rights to any consumer magazine for the same money they’ve been receiving in the past for just all print rights. (It’s fine if you’re willing to sell on an All Rights basis, but you should be paid extra any time you include electronic rights in the package.)
This whole electronic rights issue really began to heat up at the turn of the century, and it continues to be an issue today—even more so, in fact, since every trade publisher in the country soon moved into the publication of eBooks and began to change their book contracts in an attempt to force authors to sign away not only their eBook rights for a pittance, but also their rights to every conceivable digital means of reproducing a book’s content that is available now or might be developed in the future. Talk about a land grab!
I predicted in 2000 that, unless this all rights/electronic rights issue was resolved, more and more professional designers would stop selling to consumer crafts magazines, and the only craft projects editors would be able to get would be from beginning designers who have to sell on an All Rights basis because they lack negotiating power and are more likely to give in because they are so eager to be published.
Just a Suggestion
I’M NO LAWYER, but it seems to me that magazines ought to be able to purchase material in one of two ways:
(1) Offer an All Rights contract for content they would like to publish both in print and on the web, including extra payment for the electronic rights; or
(2) Offer a modified All Rights contract for content to be published only in the magazine, allowing the designer to retain electronic rights.
Either way, the magazine would remain on safe legal ground in that readers could make published projects without fear of violating a designer’s copyright, while the designer would have the option of publishing projects on her own website for promotional purposes, or selling them to an e-commerce site for additional income.
A Few Words about Exclusivity Clauses
IN SIGNING A CONTRACT, be careful about what you agree to, remembering always the growing role the Internet is now playing in your life as a writer or designer. Don’t sign any clause that will prevent you from earning as much income as possible from other sources. For example, the exclusivity clause in my contract with IdeaForest prevented me from writing for any of their direct competitors (which I thought was only fair); yet I was free to contribute material to print magazines that did not have a competitive presence on the web, as well as to noncompetitive websites or my own personal domain.
Curiously, even the clause that specified I could write for my own website turned out to be problematic. At the time I signed the contract with IdeaForest, I was a guest writer on Crafter.com, owned and managed by Renee Chase. But in March of 2000, when Renee decided to sell Crafter.com to an e-commerce site that was in direct competition with IdeaForest, I suddenly found myself on shaky ground again. Because of my exclusive contract arrangement, it was necessary to move all my content off the Crafter.com site.
See what I mean about the of the electronic rights problem? If I hadn’t already been making plans for my own domain when all this happened, I would have lost not only my column in Crafts, but all the momentum I had built on the web between 1998-2000.
The Ironic Conclusion to This Story
THE COMPETITIVE E-COMMERCE website mentioned above—one that might have published my column, thus forcing me to violate my exclusive rights contract with Idea Forest—went out of business in August, 2000. According to the June 2000 issue of CNA (a crafts trade magazine), CraftShop.com lost its venture capitalists and filed for Chapter 7 (liquidation) only four months after it opened. It was one thing to have to give up my column in the first place, but to give it up for nothing was another thing entirely.
Frankly, it took quite a bit of positive self-talk for me to keep from feeling bitter about this. I finally remembered what it says in the Bible about everything having its own time and season and decided to be content in the knowledge that my column was very successful while in print and was, in fact, the longest-running column in the industry at the time it ended.
To add salt to the wound, early in 2001 IdeaForest, which was now having serious financial problems, partnered with the JOANN Fabric stores and changed the website name to Joann.com. But in February, after failing to get a new round of funding, all the original IdeaForest content providers and craft designers for this site were let go (along with 40 staff members). I was asked to stay on the site as adviser to the StreetFair advertising area until May, when Joann.com announced it was closing this advertising area due to lack of interest from crafters who were being invited to advertise there.
Feedback on the All Rights/Electronic Rights Problem
from Industry Professionals Who Preferred Anonymity
From a designer, illustrator, and author: “Art Directors have to crank out many jobs and the quickest solution is stock images. This makes less creative work; it’s easy to pick a pretty picture, but it takes a creative person to visualize a concept and trust an illustrator or photographer to fulfill that idea. The use of stock images is not going to go away but, as artists, we need to have better control of our work.
“It is the artist’s responsibility to sell all their rights and they need to be careful what they choose to give away. While giving away some of their art is good, especially for charitable causes, this can also diminish the worth of their work and may make it harder to increase the value of it later. There are always going to be artists who give their work away (starving artist syndrome), and businesses that look at just the price, but the best of the best are not selling their work this way. An artist needs to look beyond what the world is doing and do something better.”
From another crafts designer: Thoughts on how to increase profits when selling designs on an all-rights basis, and how to reuse basic artwork ideas without violating your all-rights sales.
“In my area of craft design, ALL the publishers buy all rights, including electronic. You can negotiate First Rights occasionally, but then they want to pay you less money. We get little enough as it is!
“Even if you did sell first rights, where can you then sell that design again, since all the editors want exclusive rights? I have had only one occasion when I could do this, because the first rights had been sold to a kit manufacturer. A publisher was willing to buy the design once the kit had been discontinued, considering it noncompetitive. But not many will do that.
“My fellow designers and I have had many discussions regarding this issue. Most feel it is unfair to have to sell all rights all the time. Some designs, however, can’t be reused because they are specific to a certain shape or size. Other designs that have more involved artwork, however, could certainly be used over again; for example, as greeting card art.
“I would like to be able to retain the right to use the artwork in a different, noncompetitive industry. But then I would have to break into that market! One major publisher allows the rights to revert to the designer once the book is deleted from their line, but that can be many years.”
One way around: “One way around this problem is to do designs in sets, all using the same motif. Often an editor can publish the set instead of a single item. This way, the designer gets more money for using the same artwork several times.”
“As Barbara indicated in her article, writers who sell all rights to an article can present the same ideas in another article by using a different slant and putting the words and sentences together differently. In many instances, designers can also reuse artwork simply by modifying it a bit. I can’t tell you how many Santas or cats I have done in the last year alone—I constantly have to check to make sure I haven’t sold the same design already. But amazingly, there are umpteen ways to alter these images just enough to be different. The similarities are often considered the designer’s ‘style’ anyway.”
Who Wants to be First? “Barbara suggests that editors would have to buy on a first rights basis if all designers insisted, but who wants to be the first one to insist? I have advocated this method of raising designers’ pay for a long time. If we all insisted on higher fees, editors would have to pay them or risk not having any experienced designers to work with. Unfortunately, many designers are rather wimpy or have such a low confidence level that they can’t seem to do this.”
A Few Words about Lawyers: “As for lawyers running the industry, what’s new about that? I have been told by editors that they don’t want to grant any exceptions to their contracts because they wouldn’t be able to keep track of copyright violations by their readers. By buying all rights, things are simpler—for them!
“My first experience with lawyers was when my then-partner and I were negotiating a licensing agreement with an artist to translate his work into designs for the craft industry. Being naive young things, we hired ourselves a good lawyer to write the contract. It was presented to the artist’s lawyer, who promptly ignored it and rewrote the entire thing from his client’s point of view. Then we had to start negotiating from the defensive position. Of course, I now realize that the artist had a very good lawyer who was doing exactly what he should to protect his client’s interests. If we designers/writers had our own lawyers or agents to negotiate contracts for us, think how different things would be!
“I appreciate being able to ‘rant and rave’ anonymously about this issue. As is obvious, it really hits home for me.”
READERS: If you’re a writer or designer with something you’d like to get off your mind, this is the place to submit your experience in this area. Let me know if you also prefer to comment anonymously, lest it be harmful to your current negotiations with publishers.
Copyright © 2009, 2021 by Barbara Brabec. All rights reserved.
Writing & Publishing T/C