does original publisher have right to reprint?

'Is it legal', 'can I do this' type questions and discussions.
Post Reply
jpmirish
New Member
New  Member
Posts: 2
Joined: Wed Jan 27, 2021 10:07 am

does original publisher have right to reprint?

Post by jpmirish »

I edited and published a fanzine in England during 1982-84.
Recently I noticed a low quality photocopy sold by someone on eBay.
My response idea was to reprint original, with good quality, for posterity.
But received conflicting advice about whether I am allowed to reprint.
Most issues have material contributed by other people, and I have only found a few to contact.
I read on writersrelief.com (American) that "any publication occurring without a written contract implicitly grants First North American Serial Rights to the publisher. With FNASR, all rights revert back to the author immediately upon publication—except the right to reprint the work in any reissues or revisions of the particular issue in which the work appears." Which is encouraging, but is that true in UK, and 38 years later?
Please does anyone know about UK rules on original publisher reprinting?
User avatar
AndyJ
Oracle
Oracle
Posts: 2405
Joined: Fri Jan 29, 2010 12:43 am

Re: does original publisher have right to reprint?

Post by AndyJ »

Hi jpmirish,

Just so readers are clear, while an author of a lterary work has the right to agree or not to publication of his/her work, this particular question is really more about the law of contract.

I am assuming that there weren't any formal contracts in place between you and the writers you commissioned. This is actually very rare. Normally publishers have, at the very least, standard terms under which commissions from freelance writers and illustrators are agreed. Since you don't mention such standard terms, I conclude that all the agreements with your writers were verbal, and quite possibly varied from one contributor to the next, say over the size of the fee or the length of the article which was commissioned. On that basis, the default position is tthat the author retains his or her copyright, but the publisher is free to publish the work as he sees fit, including the ability to reprint further editions of the same work in order to meet public demand. Let's unpick that a little.

Assignment of copyright has to be in writing, so unless a particular writer was employed (ie there was a contract of employment) by the publisher at the time the article was written, and in the absence of a written agreement, copyright remains with the author. A verbal commissioning agreement would normally be limited to covering essential aspects such as the scope and length of the article, a deadline for submission and the remuneration on offer, in the expectation that the article would be published in the particular title concerned. The licence being given by the author under such an agreement would be to the publisher personally (either as an individual or company) and it would not be possible for the publisher to transfer such a licence to another person or publisher without the permission of the author. The implied terms of an unwritten licence would be based on the customs of that particular trade or business. So for instance if the journal or magazine had a worldwide circulation, it would be implied that the author knew this when entering into the agreement and that the fee agreed reflected the extent of the circulation. However the licence would not normally be regarded as exclusive to the publisher, meaning that the author was free to permit publication of substantially the same work by another publisher, once the original publication had taken place. In other words the first rights to publish would belong to the first publisher. Similarly, if the circulation of the journal or magazine was limited in scope (say to a particular country or part of a country) then the author would retain his/her rights to make a separate first rights agreement with another publisher for a different territory. There is no provision under current UK copyright law for the automatic reversion of rights, whether they are granted by assignnment or licence (see paragraph 27 of Schedule 1 to the Copyright Designs and Patents Act 1988). That said most publishers' contracts do contain a reversionary clause.

Matters relating to the publisher. Certain matters remain the responsibility of the publisher. So for instance deciding the date of publication, the cover price, the position of the article within the magzine together with the ability to edit the article for length or to meet any house style, etc and to remove any defamatory content for example, and the extent of any print run. This last item would include the right to extend a print run if public demand required this. I think that re-publcation of the same edition at a much later date, as you propose, would also be covered by the generally recognised terms of business. But this right, if it exists, to reprint the magazine would remain limited to the format first used. I don't think an agreement from the 1980s could be taken to imply the author was licensing publication in, for example, digital format on the internet. Most written publishing agreements include clauses concerning publication in other formats, both those which are known and those which may be invented in the future.

However, if your verbal agreements with the contributors went beyond the most basic aspects, or indeed any written agreements were used, then you need to assume that any terms included in those conversations or documents would override the general implied terms. Clearly, if you can get permission from those writers you are able to contact that would be advisable, but I don't think you are obliged to do so.

Although you did not ask about this, you as the publisher used to own the copyright in the typographical layout of your fanzine (per section 8 CDPA). However that species of copyright only lasts for 25 years from the date of first publication (section 15). This means that if you do re-publish the original magazines, the only copyright which exists today will that of the individual authors and other contributors.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007
jpmirish
New Member
New  Member
Posts: 2
Joined: Wed Jan 27, 2021 10:07 am

Re: does original publisher have right to reprint?

Post by jpmirish »

Hi AndyJ,
Thank you very much the comprehensive answer.
In the late 1970s and early 1980s there were many hobbyist A5 format zines.
Writing and drawings, except those by hand from the club and friends, arrived by post with a covering letter saying it was for the fanzine. None of those survive. No fees were paid.
The fanzine had subscribers and sold at events but did not cover printing costs.
Most distribution was in the UK but some to North America (I received letters and art from the USA).
Thanks again,
John
Post Reply