Contract Review: The New York Times

A current NYT contract crossed my desk the other day (not for an assignment), and as it had been a bit since I've seen one, I thought I'd review it. As usual, I'm not a lawyer, and this is not legal advice. The numbers of the points refer to the numbered graphs in the contract:

1. This is a pay on publication contract, so if an editor holds the story, the paper can hold your pay. It does pay "reasonable and necessary expenses" so long as they are pre-approved, which seems reasonable enough unless you're on a breaking story and cannot get pre-approval. You have 60 days from incurring the expenses to "submit documentation acceptable to The Times." It's not as bad as some contracts I've seen that offer a 30 day window, and I can understand the time limit - if you wait months, it starts getting pretty hard to match up approved expenses to assignments.


2. This is the deal-killer, so far as I'm concerned - not only does the paper own the copyright, so you can't do anything with the story without permission, but they also get a wide range of non-exclusive rights to anything you've ever written for them before without an agreement. Interestingly, it does not seem to cover any story that was done under a written agreement, even if the agreement was far more favorable to you. If they syndicate the article, you get 50% of net receipts, after "syndication expenses" (whatever, and how much ever, those are). But putting the article on the NYT News Service doesn't count. Also, there is no provision for being able to see if the paper did, indeed, syndicate your work in any other manner, so you have to trust that they'll tell you.


3. You have to "cooperate in the normal editing process." If they don't publish the article for whatever reason, "you will be paid a kill fee in an amount to be agreed upon by you and the assigning editor." In other words, there is no minimum amount they are contractually obligated to pay. You can even have done exactly what they wanted and they are not obligated to pay you the full amount. It may be that editors are reasonable there - or not. But you are dependent on their generosity.


4. They can use your name, likeness, and by-line, not only to promote the piece, but to promote the paper. Realistically, if you have a name so big that its use could really help sell the paper, then I'd think there would be a chance that you could get a significantly different contract. But that's just a guess, and there are probably few people in the country who would fall into this category.


5. There are some broad warranties. An interesting one is that you will not "plagiarize another's work." Now, I'm generally OK with publishers wanting an absolute promise of not infringing copyright. But plagiarism is a far more slippery term. Under whose definition? At what point could you commit plagiary but not copyright infringement? That's a bit of a head scratcher, and would be a clause that would make me uncomfortable. You also promise not to violate anyone's rights, which is broad, but as we'll see later, is probably construed under New York state law. You also agree not to include "libelous or otherwise unlawful or misleading material." Misleading? OK, what's the legal definition of misleading? Nothing easy to state or understand? That means, sign this and you leave a lot of room for interpretation as to whether you might have breached the contract or not. Although you have to "cooperate fully" in the case of a third party suit, you aren't required to provide indemnification, which is good.


6. You have to review the paper's ethical journalism policies and say that you will comply with them. That means the contract is effectively making them part of the agreement, and you'd better read carefully, as there are many ways you could unknowingly go wrong. For example, you cannot accept "free transportation." Could a ride in a source's car count? Who knows? Maybe that's covered in their document, so have fun reading - and being careful. Also, you cannot accept "commissions/assignments from current or potential news sources." So, even if you aren't using someone as a source, if they could be a source, you can't accept work from that person or entity. Extending that to potential makes it enormously open-ended. And there is something snuck in: "To the extent the Article is syndicated for use in an advertisement or promotion, there will be a maximum Syndication Fee." So nice of them to drop it in here instead of where you discuss such issues higher up in the contract. What is the maximum? Apparently they can change it at will. And you cannot mention any association with the paper in speaking engagements or public appearance.


7. For two weeks, you cannot allow any article you've write on "similar subject matter" to go into print if it's going into something the Times considers competitive - which includes any newspaper, magazine, or any other publication, no matter what the form of the media (think web) "whose editorial focus is either New York City or general interest news and information." In other words, unless the paper gives you permission, forget doing other versions of the story if it's time sensitive and you have to get it into print quickly.


8. You agree that you aren't an employee - it's pretty standard looking.


9. This supersedes any other agreement you might have had with the paper.


10. The contract is construed under New York state law, which is good for issues like determining libel. But if you have any legal beef with the NYT over this story, you'd have to take it to New York county to get satisfaction. However, as my publishing lawyer has pointed out to me, the courts there understand the issues and if you're owed money, the awards can be larger than elsewhere.