Previously Published?!

Does posting my work on a Web site or blog affect my ability to sell the work later?

Yes. Anything posted online and publicly accessible may be considered “published.” By publishing on a Web site or blog, you are generally required by the terms of service to grant the host – at minimum - free, unrestricted, and non-exclusive electronic (storage and display) rights to the uploaded content. This is necessary to protect the site operator(s), and it is a perfectly reasonable requirement.

Now, clearly, you cannot turn around and sell exclusive electronic rights to another publisher, because exclusive rights would infringe upon the rights you’ve already granted to the first site. These rights cannot be taken back by deleting the item or limiting the access to it. But what about other rights?

You retain most of those, and can sell them – if you can find a buyer.You cannot sell “all rights” or even “first rights” because – remember – you have given away “non-exclusive electronic rights,” and that is a subset of “all rights.” The first to publish the work has taken “first rights” (think of it as the work’s virginity). You can, of course, sell non-exclusive electronic rights and derivative rights – again, if you can find a buyer.

The problem, of course, is “if you can find a buyer.” Many publishers insist on buying “all rights.” Most want “previously unpublished” work, or “first rights.” But what you consider “published” and what they consider “published” may be two different things. And it’s always best to be honest, because you can destroy any chances of selling your work to them or to their colleagues in the publishing field if word gets out that you’re trying to pass off “published” work as “unpublished.” Worse yet, you could land yourself in legal hot water by trying to sell rights you no longer own.

Glimmertrain Press, Inc. defines what they consider to be “previously published” at http://www.glimmertrain.com/faqs.html. It’s probably safe to assume that anything you’ve posted on a Web site or a blog, to which you’ve granted anything beyond group-level access, would be considered “published” by them. Even then, it’s possible that the banner advertising on certain sites and blogs would throw the work into what they consider to be the “published” category. Before you panic, different publishers have different guidelines, and some may be less strict.

Moreover, before you panic and start hiding all of the items you’ve already published online, consider carefully whether you think that your work is polished enough to submit for publication, and whether you ever intend to edit it carefully enough to work on getting it published. If the answer is a resounding “yes!” then you’re in a bit of a pickle.

Editorial revisions do not constitute a new work; even if you edit fairly heavily, that work has technically been published electronically. So, you might as well not start scrambling to hide or delete anything you’ve already got out there, regardless of how much potential you think it has.

You could limit an existing item’s exposure by making it private and perhaps argue that no more than 50 of your closest friends have actually ever read it. On some sites, such as Writing.com, you could show the publisher statistics that prove the actual number of readers who’ve looked at the work, and they might deem it an insignificant number. You could claim that it was something of a “writers’ workshop” and that you’d only shared the work briefly for constructive feedback. In the end, it’s up to the publisher whether to accept this or not; the only fair thing to do about it is be honest and give them the option to decide.

My suggestion for the future would be as follows: For anything you really pour your heart and soul into with the strong intention to get it published, write, proofread, revise, repeat – and submit for publication. If the work doesn’t sell after several attempts, post it online for feedback, learn from it, and apply those lessons to your next piece of writing.

For anything you write that you’d like to share informally, but don’t care one way or another about getting published, post it online and get that same feedback. Learn from it, and apply those lessons to your next piece of writing. That feedback can be more valuable, in the long run, than the prestige of being published in a small literary magazine and being paid in contributor’s copies.

It’s not life or death. Even if you’re reading this now and thinking you’ve just given away the rights to your life’s work, remember: Real writers don’t run out of words. You will live to write again.

Now, the good news. I make absolutely no attempt to market my writing. I enjoy the “instant gratification” of sharing my writing online and getting readers’ reactions in a more personal and direct way than I would if I published through more traditional means. I’ve been published, so it’s not one of those distant dreams that leaves me feeling unsatisfied in the night, as it may be for some of you reading this. But the idea that an editor will stumble into your online portfolio and “discover” your talents is not entirely a fantasy.

It’s a little farfetched – let’s be straight about that. Editors are not routinely prowling the Internet in search of new blood. They have far too much of that spilling over the transom. Most of it is bad enough to leave them somewhat jaded and in a “prove it” sort of mood. But I have published articles on writing Web sites and I have been approached by editors asking to buy – yes, pay money for – reprint rights. Occasionally, that leads to future assignments. It can happen. And you can sell those reprint rights all day long without feeling so much as a twinge of guilt.



Disclaimer

I am not an attorney. Nothing in this article should be construed as legal advice. If you have specific questions about intellectual property and copyright laws, please consult an attorney.

Additional Reference:

If you are serious about your writing and have any desire to be published or to protect your work from copyright violations, I strongly recommend that you read up on the subject and become familiar with the basics of copyright law. The links below are just a few of the valuable resources available to you online:

“Copyright Law of the United States of America,” U.S. Copyright Office (July 2001), http://www.loc.gov/copyright/title17/

“A Novice Writer's Guide to Rights,” Claire E. White (1997?), http://www.writerswrite.com/journal/dec97/cew3.htm

“Previously Published Materials,” Copyright Q&A (The Association of Educational Publishers (2002), http://www.edpress.org/infoarchives/info/
publishing/copyrightqa2.htm

Rights, Contracts and Copyright, a collection of articles by multiple authors, http://www.writing-world.com/rights/

“Piracy and Infringement,” Copyright Resources, C.E. Petit, Esq. (2001), http://www.authorslawyer.com/c-pir0.shtml

“Public Domain Dates,” Copyright Resources, C.E. Petit, Esq. (2001), http://www.authorslawyer.com/c-term.shtml