The Perils of Internet Posting
Welcome to the semi-regular series on artist entrepreneurship. Today we focus on writers specifically and on an important issue to be aware of in today’s electronic world — what you can or cannot post online and still be considered unpublished — from our monthly guest columnist, Kelley Way, a lawyer specializing in literary law. If you have general questions for Kelley on contracts or other aspects of literary law, be sure to comment below. Thanks!
PS. A list of books on literary law can be found here.
And now for a bit of necessary legalese: Please note that this article does not constitute legal advice, and that an attorney-client relationship is not formed by reading the article or by commenting thereon.
I came across an interesting warning while browsing a writer’s forum: it told writers to be wary when posting their works at the forum, because some publishers considered that a publication and would pay much less for it than they would have if the work was “unpublished.” My curiosity raised, I did some digging to see whether this was really true.
According to the Copyright Act, a “publication” is defined as “the distribution of copies…of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies…to a group of persons for purposes of further distribution…constitutes publication.”
In English, that means a work is published when it’s given out to the general public, or given to someone else to give to the general public for you.
This didn’t quite answer the question, so I looked around for some cases. I learned from these that a limited or necessary distribution was not a publication, and that typically courts found publication when the work was sold for money.
Unfortunately, I couldn’t find any case that asked (or answered) whether posting a work online counted as a publication, which means that the courts haven’t decided this question yet.
So what should you do in the meantime? One option, if you haven’t posted your work already, is not to post it at all. That’s probably the safest route, but there are advantages to posting online that may outweigh the risks, such as building a fanbase and getting community feedback.
If you’re trying to build a fanbase, a good compromise may be to only post a part of your work online, so readers have an idea of what it’s about but there are still parts that haven’t been made available to them. If you’re trying to get feedback on your work, post it on a forum where registration is required to view it, or access to it is otherwise limited.
As I said earlier, limited distribution is not a publication, so there shouldn’t be a problem if your work is not available to the general public. An additional precaution would be to give a disclaimer in your post. Disclaimers are popular in the legal world – like the one here telling you this article does not constitute legal advice.
If you were to write in the post something to the effect of “This draft is being posted solely for the purpose of critique and feedback, to be used in later editing; this should not be considered a publication of a final work,” in addition to giving others limited access to it, your bases would be pretty well covered.
If you’re already in the situation where your work is posted online and a publisher insists it’s therefore been published, you can see if you can change his or her mind. Since the courts haven’t decided this point, you could make a good argument for why the online post does not count as a publication, particularly if you have edited the work since it was posted.
That’s all part of the negotiation process. It may not get you far if the publisher wants to be hardnosed about it, but it can’t hurt to try.
If that doesn’t work, you may be better off looking for another publisher that’s willing to pay fair value for your work, or alternatively, publish the work yourself. And of course, you can always take the issue to the nearest courthouse. This will continue to be a gray area until someone does, so why shouldn’t that someone be you? 🙂
Kelley Way was born and raised in Walnut Creek, California. She graduated from UC Davis with a B.A. in English, followed by a Juris Doctorate. Kelley is a member of the California Bar, and an aspiring writer of young adult fantasy novels. She can be contacted at KelleyAWay@gmail.com.