Contract Review: Wired

Someone sent a copy of a current Wired contract. It is not, by any means, the worst contract I've seen - the writer even retains most rights - but there are some sticky points. Please remember that I'm not a lawyer and that this isn't legal advice:

• They can reject a piece and pay a 25 percent kill fee. Unfortunately, there is no cure period and no set amount of time in which they have to make a decision. So they can keep you dangling and then say, "We've decided to kill it." They don't have to give you an opportunity to learn what they think is wrong and to see if you can fix it.


• You have to get expenses approved, and because of the phrasing, it looks as though they could make you ask for each expense. You have only a month to get the expense info into them with receipts - though you need copies of them yourself for your own tax records. If you get them in after a month, they could technically refuse to reimburse you.


• Regarding rights, they have the piece for 90 days before you can do anything else with it, and that's from the on-sale date of when it's first published. It might be worth negotiating for an absolute date as well so they don't screw you around (at least next time).


• Even if they publish on the web first, they keep the exclusivity until it hits print. So what happens if they put it on the web and then decide to not put it into print? You effectively don't get to use it again.


• They can reuse the piece without paying you and can authorize others to reprint the article. They distinguish between reprints (generally a standalone version) and standalone versions, which makes me think they're looking for the right to syndicate the piece, but they mention that later, so it's unclear exactly what distinction they're making. Anything they have the ability to do they can do , and they can do that in the three months of exclusivity - or between that period and when it first appears on the web.


• Regarding movies and television use, they have the right to allow a movie or television show to use it within the show. So, someone might pick up and mention a mention of your article, or an an editor could be interviewed about the article. I don't read this as them having the right to make a movie or television program out of an article, which is good.


• They get syndication rights, both direct and they can authorize others to do so. You get 40% of "net", and that means - who knows? What expenses come out before you get a share? Quite a bit could. Generally 50% of gross is the traditionally fair split. Having warranties apply to syndication could be a problem - what if it's in another country and you now have to deal with a suit under laws and standards you don't know or understand?


• If you resell the piece, you have to require the other publisher to contractually include credit to them, which is ridiculous. That will cut down on your ability to sell, which is probalby part of what they're trying to do. And if you could get the permission, why should they get advertising? Try to get this stricken, or at least modified by a more reasonable statement that you'll try to get this. But you shoudln't have to forgo your revenue to suit their marketing purposes.


• The editing clause sounds harmless enough, but they can ask you to supply any and all research materials. Who's paying for photocopying and shipping anything that you can't email? Best to have that sorted out if it looks like you'll be using lots of paper-based sources.


• The sixth clause lets them put the article in the databases, and some number of the databases then actually sell individual copies (think of the article sales that Amazon does).


• If they do a foreign language version of the article in the US, that ties up the same language rights in another country with the same language. In other words, if there is a Spanish-language version in the US, that pretty much cuts out Spanish-language publications around the world. That seems unfair if the magazine isn't being sold in those countries.


• Technically, the non-disclosure clause could prevent you from mentioning the details of the contract to anyone. Personally, I find that a bit sticky. Writers should be able to talk to each other about assignments and clients. The part about limiting what you tell sources, et. al. about the details of an assignment seems completely reasonable, so perhaps they should word the section to do that and not include the other.


• The non-compete ends up being sticky. You cannot do any additional sales for 90 days after the on-sale date of the print publication. What if they delay publication? It could keep you from writing about the same topic with a different focus for a different and even non-competing audience. That's why you need a definite time-out on such things.


• You should limit the warranties by adding "knowingly." Any personal or property rights without restriction is very broad (I could see copyright infringement). And then to say that it won't give rise to *any* claim by *any* third party? That's ridiculously broad. On the plus side, there isn't an indemnification clause.


• There is a termination with 30 days notice clause for either side. That means if you have the assignment and a few months to do it, they can kill it and not owe you anything. It also means you can walk away from it with notice, as well.


• The contract provides for construing the contract under NY law, which is actually good. You could argue that any claim of infringement of someone's rights would have to take place under NY law, rather than some other country. But if you have any legal problem with them, you actually have to go to court in NY to take care of it, which isn't so good if you don't live in NYC.