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Ask Author Law

When and how can I recycle my own content?

Ask Author Law is a Q&A blog about legal issues for authors. I am a practicing attorney, freelance writer, and publishing consultant. I focus my law practice on the representation of authors, often consulting with or serving as co-counsel to other attorneys on publishing cases. This information is for general purposes only and is not legal advice. Asking a question or reading an answer does not create an attorney-client relationship.

Q: A group of other writers and I were having a discussion about rewriting and selling stories if you had sold all rights to previous versions. To what extent must you rewrite to avoid copyright infringement? I have looked and asked in vain for a definitive answer -- or even an authoritative and marginally helpful one. Are you familiar with any relevant statutes or case law? I do understand that in one case copyright infringement occurred on the basis of just two distinctive words.

A: The reason you’ve had trouble finding a “definitive answer” is that one doesn’t exist. This is another question to which the answer is “it depends.” It depends, in large part, on whether the particular all rights contract you signed had the effect of transferring the copyright to the publisher. That could have happened in a work made for hire agreement or in an all rights agreement that specifically assigns the copyright.

Absent a clear assignment of copyright, an all rights contract still leaves you as the author and owner of the underlying copyright. True, that underlying copyright is a mere shell of its former self, but it does leave you with the right to create a derivative work, a work “based on” the original. When you have the right to create a work based on the original you can revise fairly lightly and probably be OK, although it would still be wise to make your revisions as extensive as possible.

If, on the other hand, you did convey the copyright to the publisher, then you have only the same fair use rights as anyone else. To make fair use of your own work, you can quote briefly from it and go back to and quote from the same sources, but you should write the rest of the article from scratch.

To avoid this problem altogether, you should avoid signing all rights or WMFH contracts at all. You can tell the publisher who proffers one that you’ll be happy to license the rights the publisher reasonably needs at a fair price, but that all rights aren’t available. If it’s too late because you already signed all the rights away, you can still avoid a problem by getting the publisher’s permission to license reprints. If the publisher doesn’t care, you’ll probably get permission. Consent is a complete defense to copyright infringement, so you change as little or as much as you wish. Even verbal consent is OK, although it would be better to follow up on the verbal consent with a letter thanking the publisher for giving you permission and still better to send the publisher two copies of a letter agreement that asks the publisher to acknowledge the consent by signing and sending back to you. In this case, enclose as SASE to make it as easy as possible for the publisher to do what you want her to do. If you intend to rely on the verbal consent, make a note of the name of the person you talked to, the date, the time, the number called, and the gist of the conversation. Keep those notes in your records. If it’s legal to tape a phone conversation in your state, do that too.

You should also consider the ethical implications of your question. Some methods of recycling an article may be completely legal but ethically ambiguous. If you have doubts, getting permission is probably the best method.

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