Previously Published??!

Does posting my work on a Web site like Writing.com affect my ability to sell the work later?

         Yes. Anything posted to Writing.com may be considered “published.” By publishing on Writing.com, you have granted Writing.com free, unrestricted, and non-exclusive electronic (storage and display) rights to the uploaded content. This is necessary to protect Writing.com, 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 Writing.com. 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 can also sell non-exclusive electronic rights and derivative rights – again, if you can find a buyer. You cannot sell “all rights” because – remember – you have given away “non-exclusive electronic rights,” and that is a subset of “all rights.”

         The problem, of course, is “if you can find a buyer.” Many publishers insist on buying “all rights.” Most want “previously unpublished” work. 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or to their colleagues in the publishing field if word gets out that you’re trying to pass off “published” work as “unpublished.”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 Writing.com and 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 Writing.com (visible to any non-upgraded members of the group) 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 in your portfolio, consider carefully whether you think that 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 in your port, regardless of how much potential you think it has.

         You could limit an existing item’s exposure by changing its access level to “Private,” and perhaps argue that no more than 50 of your closest friends have actually ever read it. By not deleting it, you could show the publisher proof of the actual number of readers who’ve looked at the work, and they might deem it an insignificant number. You could claim that this is 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 here 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 here 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 mag 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 much prefer the “instant gratification” of sharing my writing here and getting readers’ reactions in a more personal and direct way than I would if I published through more traditional means. I have “given away” my first novel, for free, to the Writing.com community. I honestly don’t think a traditional book publisher would buy it, and I’m not about to pay through the nose to do it myself. (That would lead to having to do something I really detest, like...marketing.) 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 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 sites like Writers.com – sites that were not as reputable or as professional, in many respects – and I have been approached by editors asking to buy – yes, pay money for – reprint rights. 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.

Acknowledgement

Many thanks to AdrianaCB , my “Slacker Advisor,” for her assistance and critique in preparing this article. It would not be as clear or as accurate without her help.

Thanks, too, to burnettbrown for asking the question, and to the indestructible winklett and others for convincing me there was a real need for this article.

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