Q: About 20 years ago, I sold a short story to a magazine. One line in my contract stated the payment was for “full rights” and another said, “On acceptance of this payment, the author transfers the copyright interest to … .” Does this mean I can’t sell the story ever again, even as a reprint? What if the magazine is no longer published?—P.A.‑Humphrey
A: Selling full rights to your work is like selling your car—once the contract is signed, you have no rights to the piece and can’t sell it again. Works created 20 years ago are protected for the life of the author plus 70 years, so the new owner has that copyright protection.
According to our legal expert Amy Cook, even if a magazine is defunct, someone, somewhere, still owns the copyright to your piece. If you want to sell that article again, you’ll need to get the rights back.
“Even if the company went out of business, copyrights are assets that can be bought and sold; they don’t just disappear,” Cook says. “However, if you can find out who currently controls the copyright, that person may be perfectly willing to transfer the rights back to you.”
Cook also notes that there’s a little-known loophole in the Copyright Act that says authors may terminate their copyright grants after 35 years (though it doesn’t apply to works-for-hire or copyrights transferred in wills). But this loophole still requires you to contact the existing copyright holder and inform her that you’re exercising the clause. It’s important to put it in writing. And if you’re doing this, I suggest consulting a lawyer first.
Your other option is to change the story to make it a new work. There’s no real formula when it comes to creating a new piece out of old material. It’s important to know that you can use the same idea, but the work can’t be “substantially similar” to the original piece. How similar is “substantially similar”? That’s up to the judge—if it ever comes to that.
Brian A. Klems is the online community editor of Writer’s Digest magazine.
Have a question for me? Feel free to post it in the comments section below or e-mail me at WritersDig@fwpubs.com with “Q&Q” in the subject line. Come back each Tuesday as I try to give you more insight into the writing life.