Wednesday, February 13, 2008

Follow-up: Writers' rights?

Following up on my previous post, the first thing is that I discovered that another writer had a similar experience with this publication, so it does seem to be their policy to "copy edit" without sending a writer any proofs or galleys before publication.

I received a private message in response to my blog post from an experienced writer and editor who told me that in fact I am in the wrong, that the journal once I have agreed to publication and despite the fact that I signed no contract, can do what it wants to my story. She suggested I take down my blog post, and apologize to the editors in question.

I decided that I had to look into this further. Can this be the case? And, if so, how many writers know this? If this is the case, why do so many decent and reputable literary magazines send writers proofs to approve if they don't have to? Purely out of respect, not of duty?

I posted queries on all my online writing groups... and of these hundreds of writers, the majority of whom have had many stories published, no-one knew the legal situation, our legal situation. I received another, very lovely, email from another highly experienced writer, artist and editor, who unfortunately said that she too believes that the magazine can do whatever they want to a story once accepted for publication.

Where are the lawyers? I thought to myself. I don't often say this, but we need to hear from a lawyer.

And, as if by magic, here is a lawyer, posting in response to my query, to say:
They absolutely do not have the right to change your work without your permission. When I was a first-year law student we read an appellate decision about a case brought by Monty Python against a tv network. The tv network had acquired the rights to broadcast some Monty Python footage, then "edited" the footage in significant ways without even telling Monty Python in advance. The network was liable for damages, because they had altered the work without the author's consent. Don't remember if it was a copyright violation, tort, breach of contract, or what, but the bottom line is they can't do that.

The actual case is here. And it says:
Although American copyright law did not recognize a cause of action for violation of artists' moral rights, the Lanham Act protected against mutilation of artistic works as a false designation of origin of goods.

My questions now are: does this apply across the Arts? And outside the US? And how is "mutilation" defined?

If anyone can clarify this situation, please post a comment here. If I know that a magazine has the right to "mutilate" my work, I will stop submitting anywhere. And I would really rather that wasn't the case!


Gay Degani said...

With all this controversy swirling about and people recommending that you remove your protest blog, you must be so furious!!

But I get why you might want to be careful about naming names on a public forum, butmost writers want to know the name of the offending rag. Perhaps via private email? No one's taken our rights away from that yet, or will that be the next dirty secret?

DroitMoral said...

Hi Tania,

I presume since you are based in Israel, the law as applicable to writers based in Israel is what you are interested in, irrespective of the publisher being based in whichever country. If so, my following comments might be of some use…..

The Berne Convention is the international treaty dealing with copyright and moral rights and provides in Article 6bis the following:-

[Moral Rights: 1. To claim authorship; to object to certain modifications and other derogatory actions; 2.After the author’s death; 3. Means of redress]

(1) Independently of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.

(2) The rights granted to the author in accordance with the preceding paragraph shall, after his death, be maintained, at least until the expiry of the economic rights, and shall be exercisable by the persons or institutions authorized by the legislation of the country where protection is claimed. However, those countries whose legislation, at the moment of their ratification of or accession to this Act, does not provide for the protection after the death of the author of all the rights set out in the preceding paragraph may provide that some of these rights may, after his death, cease to be maintained.

(3) The means of redress for safeguarding the rights granted

As far as I am aware, Israel had given effect to the above article by introducing moral rights into Israel copyright law in 1981. As such the writers have both the right to claim authorship of his/her work; and the right to object to any distortion, mutilation, or modification of his/her work, which would be prejudicial to his honour or reputation. As such any publisher which does not send you the proof after copy editing can fall foul of the second right I have mentioned above, provided you have not signed off/waived such right in any agreement with them (depending on what their terms of agreeing to publication with them). As to which other categories of arts such rights apply to would depend on what exact categories of works Israel copyright law protects.

TitaniaWrites said...

This is fascinating, DM, thank you so much! And this applied not only to publication in books but to magazines and newspapers too? I will definitely look into this further, this contradicts what the writing bodies in the UK told me. Very interesting! Thank you for commenting.

DroitMoral said...

I did not know if you were interested in UK law or not so i kept my comments restricted to international obligations on countries and their execution and as such rather simplistic!

As far as UK law is considered, the moral rights protection have been criticised heavily for being subject to too many exceptions and as such being of little use.

So yes your right does depend on the kind of publication you are submitting to in the UK (of course i am not saying it is in any way fair :P) and other countries might (many european countries for sure, but i'm afraid i don't know about Israel in detail) do have far stronger protection than this.

The relevant exceptions in UK law are as follows -

The right does not apply in relation to any work made for the purpose of reporting current

The right does not apply in relation to the publication in—
(a) a newspaper, magazine or similar periodical, or

(b) an encyclopaedia, dictionary, yearbook or other collective work of reference, of a literary, dramatic, musical or artistic work made for the purposes of such publication or made available with the consent of the author for the purposes of such publication.
Nor does the right apply in relation to any subsequent exploitation elsewhere of such a work without any modification of the published version.