Copyright © 2000-2013
The All Rights/Electronic Rights Issue
A Painful Personal Experience Article
by Barbara Brabec
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 Web site. 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 Web site, 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 Web site 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 Web site, 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 Web site. 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, that 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 become complex when the crafts industry took off on the Web.
Without designers (who have been 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 crafts 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 is now getting into the publication of eBooks, and changing all 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 Web site 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 Web sites or my own personal domain.
Curiously, even the clause that specified I could write for my own Web site turned out to be problematic. At the time I signed the contract with IdeaForest, my only Web site was on an area of 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 Web site 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 Writers and Designers Who Prefer Anonymity