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I don’t write for money. Some of what I write, here or in publications, may eventually mean I can take a particular job or have a particular experience. This flexibility means that I sometimes say no to opportunities. I’m especially likely to say no if a publisher wants to own what I write. Here’s a recent example, with contracts, to show what I mean.

Due to some recent news events, I was asked to write an opinion piece, sometimes called an op-ed. As a rule, I don’t enjoy reading opinion pieces or commentary unless I can tell that the author knows what they’re talking about. While I write plenty of opinions on my blog, I’m also not a huge fan of publishing them elsewhere.

They should put author credentials at the top: “George raises borzois and is therefore an expert on Russia – U.S. relations”. I used to scroll to the bottom but often it’s just a link to an author page that lists articles, not biography. It’s dampened my interest in opinion reading.

When you’re in my position, though, you sometimes do things you don’t like doing because they might help. Thankfully, the blog gods sent two very similar offers my way. They were to:

  • write an op-ed for $500, ownership to the publisher for at least a year
  • write an op-ed for free, ownership to the publisher

If you have never negotiated a contract with a legal publisher for your law library’s resources, you may not realize that this is exactly how they start too. This is not where anyone expects you to say yes or no. This is where you negotiate (if you want).

My immediate response to both of them was to ask for clarification on copyright. I would not have kept the money from the one publisher, so I was going to be doing this for free. That math means that someone is getting the value for my free work.

I have regretted my book contracts with Thomson Reuters for ceding the entirety of the copyright. It didn’t really have a real-world impact for me but the principle rankles. There are authors out there who make money off of their books. I’m not one of them. It’s one of the reasons that, when I thought about doing an e-book, I was going to keep the copyright but give away the content. I explored getting my copyright back (and I think I may have it) but enough time has gone by that I’m not that fussed.

There’s also the reality that, if I had wanted to experience the book publishing process, I needed a publisher. And sometimes you’re on the asking side of the equation and not the giving side.

This time, it was going to be different. I knew I would need to ask. And I knew I might have to walk away.

The Huffington Post

The first contact was from the Huffington Post and it was to go up on their site about 6 days later. Not a lot of time to decide, get a contract, and write. Most of the license doesn’t really matter to me. It’s boilerplate and is used for every freelance interaction.

The thing that was the stumbling block was the perpetual nature of the license. After going back and forward, they offered a one-year exclusive period. I could still publish the writing to my own site but would otherwise be restricted by the non-exclusive license they gave me. There’s a whole lot of other stuff in there – republishing on their own properties, the right to create new products (movies?) from it, and so on.

The one-year period could be extended by 18 months. And of course, I would have no control over the writing for that period of time. And I would be limited, explicitly or implicitly due to being cautious, about what I could write that was similar to that writing.

Again, I have the luxury of not writing for a living and so not needing to be paid to do it. But a second request for an opinion piece came in on the same day, and so now it was going to have to be a choice. If I agreed to Huffington Post, not only was I not in control of that content, but I couldn’t write about the same issue in a second publication.

This is when the value discussion arises. What does exclusivity and ownership mean? Who does it benefit? I’ve written before about how few people are reached by most media. If your goal is to make money, then you can probably cede exclusivity and ownership. If your goal is to amplify your message, then exclusivity and ownership by someone other than you works against your goal.

What I needed was to retain the copyright and give the license to the publisher. Not the other way around. In the end, I passed on Huffington Post.

Newsweek My Turn

The second pitch was from Newsweek. They have a space called My Turn and it’s a first-person human interest patch. It doesn’t pay money and it appears to churn a lot of stories but it was not fundamentally different from Huffington Post as far as my work.

I asked the same questions of Newsweek and they came back with a very simple statement of their copyright. And it was the same as Huffington Post’s original – perpetual, exclusive, etc. I explained that I wasn’t comfortable with that and asked if they could make any changes.

I’ve sometimes wondered if I said, “I’m trying to amplify the story of my wrongfully detained brother, and your exclusivity and copyright licensing makes that harder.” But I realize that this is just business, and heavily lawyered, and so I try to keep it on a business level.

The Newsweek folks were pretty flexible. First, we did the entire discussion in emails. Second, they were only concerned about tightening up their own non-exclusive license. This was interesting, because it introduced me to a new wrinkle: perpetual and irrevocable are terms of art.

This was what they pitched back to me:

We can agree to your copyright terms as laid out in your email. But we ask that you agree to grant Newsweek Publishing LLC a perpetual unrevocable (sic) worldwide license for the essay.

I looked at that and thought, isn’t something perpetual also irrevocable? From my perspective, it was a meaningless distinction. And, as someone who didn’t know the difference then, it means I would have honored that license in perpetuity, assuming it was irrevocable because it was perpetual.

It was fascinating, then to see the recent hubbub around the Open Gaming License and Dungeons and Dragons (bet you didn’t see this twist!). The Electronic Frontier Foundation has a really great summary of the issues, written by one of their lawyers who also develops table top role playing games (TTRPG). And the author explains the difference between revocable and perpetual, in D&D terms:

Some have pointed to the word “perpetual” to argue that the license is irrevocable, but these are different concepts in the law of licenses. Perpetual means that the license will not expire due to time passing, that’s all. In RPG terms, consider the invisibility spell. “Perpetual” is like the duration; the spell lasts for one hour. But the caster can dismiss it at any time: that’s like revocation. And if the invisible person makes an attack, the spell ends automatically: that’s like a license terminating because of a condition being met, usually breaching the terms of the license. Just like the magic spell, these are three independent concepts.

Kit Walsh, Beware the Gifts of Dragons: How D&D’s Open Gaming License May Have Become a Trap for Creators, January 10, 2023

Ugh. There’s no wonder people need law libraries when the words we use every day don’t mean the same thing in the legal system. I think Kit Walsh’s explanation makes a lot of sense, but I also liked this Fenwick & West licensing guide, that lists, among others, the difference between perpetual and irrevocable:

  • Worldwide v. a defined territory — geographical parameters
  • Perpetual v. a term of years (or months or days) —temporal parameters
  • Irrevocable — can never be terminated early
  • Nontransferable — cannot be assigned
  • Royalty-free v. royalty bearing — references separate payment terms

So now I know! I can’t say that I agree that it makes sense but I have plenty of windmills at which to tilt already. One thing that I struggle with as a law librarian is caring about these details, because they turn the complicated into the onerous. How on earth are people supposed to understand the law when it is made so unintelligible? I mean, I completely understand that a time parameter can be important to a license, but it shouldn’t be mostly lawyers who understand these distinctions.

In any event, I emailed back to the Newsweek folks that I granted them a non-exclusive license, blah blah blah, and retained copyright of my work. They were happy, I was happy, and they published the opinion piece within about 5 hours of me completing it. My partner and I worked on it – she’s an editor! – live using the Word app, and using the Editor feature to ensure it had high readability. I still don’t like the Editor but it’s potential uses are growing on me. They had made one change – inserting a hard return – and that was it!

I can’t say I like the click-bait-y title they gave the article but you can now read it here, on Newsweek – Paul Whelan Is My Brother, Russia Is Torturing Him – but also here, on my site under a different title. Now, when it falls off their web site, I’ll still have a copy.

Exclusivity and ownership, who benefits? Newsweek ran that post and it got some clicks but was almost immediately bumped by “I Discovered the 7 Stages of Divorce” and “I Microdosed Magic Mushrooms for a Year“. It’s a business and the media and news cycle move on. Newsweek decided to publish my piece in their print magazine (January 13 issue), so it will now live on in dentist’s offices as well as online.

In my accounting, I benefited from retaining ownership and avoiding exclusivity. Even one year is too long for someone else to own your work. There is no reason for these constraints. Each of us operates in a different context. If our goal is to amplify our legal research scholarship or to promote legal information access, locking that content behind a paywall is counterproductive. But, as a whole, I expect law librarians would land on the side of more access than to ceding copyright or publishing control. The legal publishing of government documents should be enough of an example to deter anyone from giving up their copyright or control.

It may mean some missed opportunities but, if we have the option, we should do what we can to retain ownership of our work. In my case, I do not want anyone to tell me which of my creations I can or can’t make freely available. When the opportunity arises, you will need to ask to retain control (or demand it, as your approach prefers) because no one will offer it to you. And, considering your own circumstances, determine whether you can afford not to own your own stuff.