Contract Review: Creating Keepsakes

I received a request at one point to review the contract from Creating Keepsakes. The PDF version can be found on the publisher's own site. Please remember that I'm not a lawyer, and that this isn't legal advice. Here's my take:

• Opening Paragraph The wording here should put a writer on alert. First, the agreement is for "any article or articles created in the past or to be created for or on behalf of Magazine in the future." So it is retroactive, and if you had a different arrangement in the past with the publisher, that is out the window. Also, if you got a modification on a future article, you might find that this wording still could hold legal sway.
• Section 2 - Editing There is something odd here. The magazine can keep reusing an article in any way it wants and can adapt it to any medium, with no additional compensation. So the publisher could create a book made up of projects featured in the magazine and pocket all the money. The curious thing is the phrase "The Author agrees to make such changes in the Works as Magazine may from time to time reasonably request prior to publication." If I'm reading this correctly, not only would the writer have to provide edits for the first running, but could technically be required to re-edit the article for additional uses in the future, again without any further payment.
• Section 3 - Consideration/Expenses It's a flat fee payable on acceptance - although the contract doesn't describe what that means to the publisher. This is often a snake-pit of an issue. I've seen magazines define acceptance as the final sign-off before the magazine goes to press - or, effectively, on publication. There is no mention about how soon after "acceptance" the writer should expect payment. Also, the magazine can decide not to publish the article, which appears to be separate from not accepting the article. In that case, it can reduce payment to 25 percent of the original fee. If you've already been paid, then I think you could be liable for sending back the extra 75 percent. Also, if an article is accepted, on principle the publisher should pay the full fee. The writer has obviously delivered what was agreed upon. If the publisher made a mistake in the commission, or changes its mind, the writer shouldn't be the one paying for the reconsideration.
• Rights in the Work Section The publisher gets a one year exclusive. Furthermore, the publisher can syndicate the work - sell it to other publishers. Between that and the one year exclusive, you can kiss a lot of the resale possibilities goodbye. The publisher also gets unlimited use in its own venues, and even gets extensive database, Internet, and electronic publishing rights.
• Author's Obligations Clause a is overly broad. Libel and obscenity have geographic definitions, so this would seem to leave the writer open. Given a later clause about interpretation under New York law, my point here might be moot, because I suspect the definitions would have to be under that state's definitions. The writer has to "fully cooperate" regarding "requested rewrites and revisions," which means there's no limitation on how often you can be asked to change things. Not only can the writer's name and likeness be used to promote the article, but to promote the magazine. So, if you made it big, they could keep using your name, in theory.
• Miscelaneous The sentence "Any claim or litigation arising out of this Agreement or its performance may be maintained only in courts physically located in New York County, New York, and Author and Magazine hereby consent to the personal jurisdiction of such courts" could be a problem. If you find that the publisher doesn't pay you, you'd have to go to courts in New York County to take action, not sue from your home territory. Now, as my publishing lawyer, who is in New York (I'm not) has explained to me, this isn't necessarily a big problem. New York courts understand publishing issues, and when they award damages, they tend to be large. But you'd probably have to appear at least once or twice, which adds travel costs. Generally companies add such clauses to make it tougher on the other party to take legal action.