Sunday, November 28, 2010

Can I Say That My Story Was Not Previously Published?

For several years, the Toronto-based writer and illustrator Debbie Ridpath Ohi published a wonderful and enormously popular online newsletter for writers called Inklings, to which I contributed a periodic column entitled "Ask the Lawyer." At its peak, Inklings had 50,000 subscribers.  Here, in slightly updated form, are a question and answer from a vintage Inklings column (to which I granted Debbie "first publication rights").

Q. I posted my stories on my website at the same time as submitting them to various publications.  One of them wants to buy my story, but wishes to have "first publication rights."  By putting my stories on the web, have I published them?

A. Yes and no.  In seeking first publication rights, an editor has two concerns.  First, for commercial reasons, the editor presumably wants to be the first to distribute your story to the periodical market.  Second, for legal reasons, the editor wants to be certain that no prior publication owns any conflicting rights in your story.  Your publication of your own story on your own website does not raise legal concerns about conflicting ownership rights.  However, it may be a closer question as to whether your posting of your story on your website could materially diminish the commercial value of the story to your publisher.

By way of background, as a matter of U.S. copyright law (which is not necessarily dispositive on the meaning of "publication" in a private contract with the periodical), it is not clear whether the display of the story on your website constitutes a publication.  Here is the definition of "publication" in Section 101 of the Copyright Act:
the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication.
Thus, while the mere "display" of your story on the website may not constitute publication in the copyright sense of the word, the explicit or implicit authorization of your website visitors to download it, print it out, or redistribute it (e.g., through social media) could be.

Accordingly, to be entirely upfront (and to preserve your editor's goodwill), you may wish to disclose to him/her that you have previously posted the story on your website and that you, of course, assume that is not a problem.

An afterthought and amplification:  Should an editor of an ink-on-paper periodical care if your story appeared on your own lightly trafficked personal website?  Probably not, particularly if you take down the story when you learn that you have placed it with the periodical.  On the other hand, you can readily understand why the editor of a printed  periodical (or, perhaps especially, the editor of an online periodical) might care about the previous online posting of an article in a highly trafficked website, where it has already have been accessed by many readers and remains available online for free in competition with the periodical's (hopefully paid) publication of your work.


  1. Well I would think that if you published an entire story on-line it might hinder your chances if they demand no on-line pubs. However if it's tiny excerpts (which in the final draft might be edited) I can't see how it would be considered publishing a whole story.

  2. Your point is well taken. The portion of the story posted would clearly have a bearing on whether an editor would consider the posting commercially relevant to the acquisition of "first publication rights." This is a practical business calculation as much as (or more than) a question of legal interpretation of a contractual phrase.

  3. great article! I'd love for you to have a column on my social network for writers. If you're interested, please let me know. Many writers will benefit from your work and get to know you.
    Martha Tucker, book coach, publisher, book marketer

  4. This is such a helpful site! I was wondering if you could answer a question for me. I'm looking to send some of my poetry out to a few publications, but in December of last year, I "self-published" a chapbook of my work as a gift to friends and family. I only printed about 50 copies, and the book was not distributed via any other means but my own gift-giving. No money was exchanged and no one else is distributing my work. Are the poems printed in these gift chapbooks considered "published"? Are they off-limits for publications that are only interested in previously unpublished works? Feel free to either comment back, or send me an email at Thanks!

  5. Thanks for your comment, Liz-a-nator. Regrettably, I can't answer individual legal questions. You may wish to consult an attorney with literary property experience, who is licensed to practice in your state. You may be able to get a referral to a free or low-cost attorney through one of the volunteer lawyers for the arts services or professional writers organizations listed in this earlier post.

  6. I want to send in a story to a contest; and it says the prize is a certain amount of money and first publication rights; but after being published; I can 'add it to my collection.' Does that mean that I will never be able to have a publisher publish my story should I so desire if I actually win this contest? I would also like to know what the phrase 'add to my collection' means? Thank you very much for your time and iniative to aid budding writers.