No Written Contract? What You Should Know Before You Agree To Publication

by | Nov 19, 2010 | Copyright And Your Writing, Editing And Editors, Law For Writers, Literary Agents | 14 comments

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Old-school editors and publishers—and even some new e-publishers—have long relied on nothing more than a handshake to seal an agreement with a writer. Short stories, poems, and personal essays are frequently published by editors at literary magazines without a written contract. But what does it mean if you’re offered a place in a publication, but you’re not offered a formal contract? What rights are you granting if your work is published without a signed agreement?

At Writer’s Relief, we recommend you speak with a lawyer if you’ve got questions about rights and contracts. But you’re welcome to use the information below to help get started.

Print Publishing Without A Written Contract

The traditional print publishing industry has long operated without contracts for smaller, nonpaying publications. In fact, “no contract” publishing agreements happen so frequently that the industry has developed standards for such handshake deals.

Copyright law holds 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.

After you’ve granted FNASR, you can’t grant them again (only one publication can publish your work first). But you can offer one-time rights (or reprint rights) to any subsequent publishers who might be interested in your work.

Be warned though. Most editors at lit mags want to be the first to publish your work. Read more: What Is Considered Previously Published Writing?

Our Recommendation: If an editor wants to include your poem or short prose in an issue of a literary magazine but does not offer you a contract, you can always offer your own agreement.

If you and your editor share a clear understanding of what’s being granted, then no one’s feelings should get hurt.

For example:

Thanks so much for your interest in publishing my work! I’m happy to grant FNASR print rights to Magazine Name.

Submit to Review Board

E-Rights Without A Written Contract

Granting rights for print publications is relatively simple. But e-publications can be a little trickier. The problem with granting e-rights is that, frankly, no one is quite sure what the term “e-rights” even means.

The court systems simply haven’t tried enough cases to determine e-rights standards yet. All that’s entirely certain is that e-rights must be negotiated separately from print rights, so an agreement about print rights does not necessarily include e-rights.

Our Recommendation: Again, the point is that you and your editor must be clear with each other about what’s being granted. A note to clarify is helpful.

Example:

Thanks for your interest in my poem! I’m granting you the right to be the first to publish my poem in this online issue of Magazine Name.

Seems easy, right?

But it’s not. When you grant the right to publish online, you could be giving the okay for that work to appear on the site in perpetuity. The standard for online literary magazines at the moment is that after the issue in which your work appears is released, the issue can then be “archived” on the site, where it normally remains searchable and readable.

If you don’t want your work to appear on a site indefinitely, then you might want to clear that up with your editor. Be aware, though, that the editor might rescind the offer of publication if you can’t agree with the magazine’s policies.

You might ask the editor:

Is your magazine willing to take my poem off your website if in the future I request that you do so?

Not all editors will agree—after all, you wouldn’t ask an editor to remove your poem from a print magazine after a certain period of time, would you?

Why We Love Online Lit Mags

Let’s face it: The world of literature is going online. And writers who develop a strong online portfolio of their work will enjoy an advantage in the digital marketplace in the coming years.

There are many reasons to be supportive of having your work archived online. Online publication credits are not only helpful to have in your bio, but in many ways they’re necessary. Learn more: Why Online Publication Credits Matter.

The Bottom Line

If you’re not offered a written contract from an editor who wants to publish your story, poem, or essay in a literary journal, don’t panic! You’re allowed to ask questions to clarify what’s being granted, and you’re allowed to disagree. Just be sure that you and the editor are on the same page—with no room for a mix-up—and write your own agreement stating exactly what you’re granting.

At Writer’s Relief, our submission strategists are trained to help our clients through the tough questions about submitting and publishing. Learn how you can become a client.

Questions for WritersQUESTION: Have you ever had to publish without a written contract? How did it go for you?

14 Comments

  1. Anita

    Thanks for this article. Literary journals are notorious for sending acceptances with little or no paperwork. This clears things up for me.

    Reply
  2. Original Writer

    Writers always need a helping hand and articles such as these provide comfort and support. This article indeed provides that kind of nurturing.

    Reply
    • Writers Relief Staff

      Thanks for your kind words. Publishing industry contracts (or lack of contracts!) can be tricky for many writers. We’re glad this article helped!

      Reply
  3. GrrlsBestFiend

    I’ve taken publications where they didn’t offer a written contract. I figure I can always ask to have the work taken down. It’s not really a big deal to me.

    Reply
  4. Wendy

    No mention of some sites (especially free-hosting sites) will hide in the fine print that ANYTHING submitted to or posted on their site AUTOMATICALLY gives the site ALL RIGHTS. I remember Netscape used to have that in their user policy (anything transmitted via a Netscape account automatically became Netscape property). Recently there was a big hubub about a photo-sharing site (don’t recall the exact name) that not only annexed the photo rights of its users, but would then comb through the pictures for any identifiable celebrities and sell those photos to celeb magazines.

    Reply
  5. Rebecka Vigus

    I let a “friend” who was opening a publishing business, put out an ebook. She assured me the contract would come as soon as it was out. When I asked about a contract she told me there was none the work was mine to do with what I wanted.
    When I asked her to pull it she started billing me for all sorts of things and the book has not yet been pulled from either Amazon or Barnes and Noble. What do I do now?

    Reply
    • Writers Relief Staff

      Rebecka, Unfortunately, it sounds like you might need to find a good lawyer. Perhaps an official notice of sorts will straighten things out. Best of luck to you!

      Thanks for posting your question; it helps bring home the point about always publishing with an established and trustworthy company, and when possible, making any agreements in writing.

      Reply
  6. Christine

    Some of the contracts I’ve seen include rights to use the work in any electronic medium now known or yet to be invented. Pretty much covers it . . .

    Reply
  7. Marigold

    My situation is similar to Rebecka’s. My e-book was released before I believed it to be ready…no galley or discussion after the publisher read it. He simply put it out there.

    He made some (glaring) typos in the formatting phase and there were some other edits that needed discussing. He told me to “be happy and market the book.”

    He actually sold copies of the book before he finished reading it.

    I was shocked when two of my friends emailed me and told me that they had purchased the book and couldn’t wait to read it. I spoke with my publisher and asked him how it was possible that he collected money from a product that was not complete or real at that point and he had not finished reading it. He said that it was normal…buying in advance. It was not indicated on the website that it was an advanced copy of the book.

    Two months later he released the book. Up until he actually received the manuscript, we had open and effective communication. Now he does not respond to me and has emotional breakdowns when I question him or address any issue at all. I have no way of knowing how many books have sold. He has sent me one payment.

    Many people have gone onto his website and purchased the book and not received the download link. I have been contacted by these people advising me of the situation. In some cases it has been over a month. I contact him and let him know that purchases were made and the link not provided. I give him the names. I have no idea how many others have had this problem. I don’t even know how many books have sold.

    It is stated in the beginning of the e-book that I own all the rights.

    I need to sever my ties with this man.
    I am trying to breathe….

    Reply
  8. Joyce Torme

    For all writers who are looking for publishers it is a good idea to join The Authors Guild as an associate member. The Authors Guild is the largest organization of authors in the country. For about $100./yr you get membership which includes free contract review from their attorneys and they have other benefits as well. Go to: authorsguild.org I have been a member for many years and have found it very beneficial.

    Reply
  9. Poetra

    A provocative insight! Just what we need!

    Reply
  10. Alex

    Hello and thanks for your precious help!
    In 2018 i had my book published by a house that didn’t offer me a contract. I didn’t think it was a problem because I was a beginner. The problem is that after some failed attempts to print my book the publisher just stopped trying. So I ended up having a published book that never reached a reader. When I asked him if he plans to print it he kindly answered “no in the near future” and we agreed to stop trying. Will there be a problem if I add my book to a new one(with new stories and of course different title and cover) and publish it as a first edition from another publisher?

    Thank you for your time

    Reply
  11. Na

    How do you pay the writers if they don’t sign a contract?

    Reply
    • Blog Editor

      Most literary journals do not pay writers.

      Reply

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