Contract Review: Scripps Networks

Someone sent a copy of a contract for Scripps Networks - owners of the HGTV, Food Network, DIY, Fine Living, and GAC cable channels and their associated web sites. I had seen one of these when I reviewed contracts for ASJA's Contracts Committee and am sad to say that this one isn't much better than what I saw then. Although, as usual, I cannot reproduce the contract itself (that being a copyrighted work), I will offer a paragraph by paragraph analysis, where I have something to say. As always, please remember that I'm not a lawyer and that this isn't legal advice:

• The Work This is the graph that describes what the writer will produce and notes that the writer works how he or she wants. It also states that SNI (Scripps Networks) "has the sole discretion to decide whether, when, and how to publish, display, exploit, or otherwise use the Work." This sentence will be important later in the contract.


• Fees This sections specifies the fees and also notes that it will pay within 30 days after all of the following occur: the Work comes in on or before the due date, or after with written permission, SNI decides that it's acceptable, and the writer sends an invoice with various bits of information they want, including an "issue date," which seems odd if you're working for the Web. (So far as I know, they're not publishing printed materials.) So, it is possible to submit late if you have written permission from an editor, which is certainly better than having a "finish by the due date" and no provision for an editor to agree to extend a deadline. It makes me wonder what would happen if a writer sent an email about a problem and couldn't get a response, as often happens with editors. If it came in a day late, although the writer had been asking the editor and not hearing back, would there be any grief? I don't know, although if they accepted the piece, I don't see how they'd get out of paying.


• Term/Termination One big problem here is that SNI can terminate the agreement "with immediate effect upon written notice to Writer, either with or without cause." In other words, if they change their minds on an assignment, they can leave you out in the cold, with no compensation for whatever time you've put in. Now, it could be that you could successfully sue them, but that would mean time and money to bring the action. This to me would be a deal stopper - and not the last one in the contract.


• Grant of Rights They want work made for hire, but they also run down extensive lists of rights, probably so that if the article is declared not to be a work made for hire, they've covered themselves. But they also get rights to use your name, likeness, and biography, not just in promoting the article, but "publications, information products, services, and merchandising." So, if you have something that hits really big, you could end up being used in promotion for derivative works, even though you don't see a dime.


• Kill Fee Another nasty area. If they decide not to accept the work, they pay you 50%. However, they have some outs: if they can say you changed the focus without prior written permission (in other words, get any changes in an email, at least, and not over the phone), if you don't submit anything, or if they decide that the work isn't up to snuff. Now, the real kicker: "Payment of the Kill Fee in lieu of the Fee shall not impact SNI's rights to the Work under this Agreement." Yes, read it again - if they pay a kill fee, they still own the work! So they can cut you loose and still do with it as they like.


• Cooperation Not sure that's the exact word I'd have used. Maybe serfdom. The agreement mentions submitting resource materials "including but not limited to" source names and contact information. Notice "not limited to?" That probably means they could ask you for notes or recordings. They can have you revise the writing with no limit on the number of revisions. The "not limited to" language comes up in supplying information for captions, sidebars, and headlines. So, you could end up writing a sidebar without any extra money - and who knows what else could be included under this phrasing?


• Endorsements From an ethical standpoint, this one might get your eyes crossing. If I read this correctly, so long as the writer meets certain conditions of getting to use a photography, he or she can actually take money from vendors to include that company's name in photographs! Huh?? SNI doesn't have to use the photo, but, come on, what kinds of standards is the company setting? At least they're not demanding that writers be pure while they wallow in perfidy under gleaming red lanterns.


• Warranty This reads worse than you might initially think, so keep in mind that the entire contract is construed under New York State laws. There are pretty broad requirements that you not infringe on copyright, personal or proprietary rights, right or privacy or publicity, moral rights, or any other right of a third party, and that the Work won't have any libelous or scandalous material. Libel and copyright infringement guarantees are fine under NY law (it's not like someone can claim libel under UK laws in this for indemnification to kick in), but moral rights? That might be a problem if you're doing something on a visual artist and somehow make them look bad in the context of their work. Publicity or privacy? As I have heard before, they won't modify this to include a "to your knowledge" type clause, even though they have an immensely broad set of warranties and most writers (including myself) are not going to be up on all of these enough to know if they might have crossed a bound or not. The hold harmless clause is far worse, though, because it applies not just to an actual breach, but to an alleged breach, so if you've been damaged, you have no recourse against them. Also, you have to hold harmless for "any claim or potential claim in connection with the Work." In other words, even if it doesn't come out of the warranties, you're still stuck. What happens if SNI breaches the contract? I think you're agreeing that you can't sue for damages. You waive moral rights - not available to US writers, but a consideration for any in other countries, and SNI isn't "obligated to pay any third party any amount in connection with the Work, including, without limitation, Suppliers." I'm guess this is to keep them from being liable if a writer gets a product on loan and doesn't return it, but it would leave me wondering if I could get screwed over legitimate expenses in connection with a piece. More deal killers.


• Indemnifications Like the hold harmless clause, you now have to indemnify them both for real breaches and alleged breaches of your warranties and for any claims that come about from the Work or the Agreement. I think that would mean not only are you responsible if someone sues them, but if there is a disagreement between the two of you, you get stuck with everyone's legal bills. Now, I could certainly be wrong on that last part, but even if I am, indemnification for alleged breaches or for any claim arising out of the article is another deal killer.


• General Provisions This agreement supersedes any other, so no matter what an editor says to you, it means nothing if it's not written down here.

One deal killer after another and pay that only slightly breaks $1/word translates, to me at least, as "Please, no informed and intelligent independent writers who have any regard for their own interests or welfare." Sounds like good advice - if you have the urge to do business with them, find someone who pays more and will treat you better.