Contract Review: Better Health & Living

Another contract came my way, so here's a review. As always, I'm not a lawyer and this isn't legal advice:

• Section 2 "Publisher retains the right to make any and all revisions and/or modifications as deemed necessary." However, will you ever get to see what appears with your name before it’s in print? You should have the right to see edits ahead of time and, if you find them egregiously bad, take your name off the piece.


• Section 3 Pay comes within 30 days of invoice, but also "after acceptance of the Work by Publisher in a publishable form satisfactory to Publisher (at Publisher’s sole discretion)." The publisher can decide that something isn’t suitable, even if you deliver what it asked for. There is also no time line for providing official acceptance.


• Section 4 "Publisher agrees to reimburse the Author for all pre-approved and documented expenses within fifteen (15) days of submission of the receipts to and the acceptance thereof by Publisher." This has become a personal irritant to me, because if you're getting reimbursed, then it shows up as income, and you need to deduct the expenses on your own taxes so you don't have to pay taxes on the expense reimbursement. That means you need the receipts. If they're willing to take duplicates of the receipts, that would be fine, but some publishers won't, and there's nothing about what is acceptable in this contract.


• Section 5 Although the section starts off about the copyright being the property of the writer, be wary, because you're being set up. In paragraph d, "The Work contains nothing libelous or otherwise unlawful, does not infringe any rights of other parties and does not contain any recipe, formula or instruction which if followed accurately would cause injury or damage." How about knowingly on at least the libel or rights infringement? Because ultimately it’s a court that decides whether something is or is not, not the writer. Graph f states, "All statements of fact in the Work are true and based upon deliberative research and all instruction and advice in the Work is harmless and not negligent or defective." Add "to the best of the writer’s knowledge," because you could make a legitimate mistake, but there are no provisions for honest mistakes here. Graph h provides the real zinger: "The Author agrees that all Work performed for and accepted by the Publisher has been written exclusively for the Publisher for distribution and circulation into various markets at the sole discretion and timing of the Publisher. Author further agrees not to reproduce or disseminate the Work in any fashion to any third party without the express written permission of the Publisher..." In other words, and the second sentence notes this, they want control even if they don’t own copyright. And unless it’s all rights, how can it be written “exclusively” for the publisher? It doesn't matter, because this is saying that you don't intend to sell it to anyone else, and that you'd need to get the written permission of this publisher to do so. It's an end run around using either "all rights" or "work made for hire" wording that might alert you.


• Section 6 I find the sentence "The Author should not consider the publication of their Work as certification by the Publisher" to be confusing. Does this refer to copyright registration? If not, then what?


• Section 7 "Although Author may be permitted to reuse all or portions of their Work under this Agreement in other works, this does not extend to granting third- party requests for reprinting, republishing or other types of commercial reuse. All such third-party requests received by Author must be forwarded to and handled by the Publisher, at the Publisher’s sole discretion." This whole thing reads as something sneaky to me. the author may be permitted, but doesn't have to be permitted. And this doesn't extend to third party requests for republishing, reprinting, or "other types of commercial reuse"? So effectively toss out even the "may," because if it's commercial use, you can't have it.


• Section 8 "Should either party to this Agreement be required to engage an attorney to enforce any provision herein, or bring an action for the breach hereof, then in addition to any damages or other relief recovered or obtained, the prevailing party shall also be entitled to recover reasonable attorney’s fees." That should not be granted ahead of time, but left to a court to decide.


• Section 9 "This Agreement shall be construed according to the laws of the State of Delaware, without regard to the choice of law provisions of that State, and all actions, regardless of the form or nature of such, to enforce this Agreement or for the breach of same shall be brought within one (1) year from the occurrence of the grounds for such action in Delaware." First, this is a problem because you're agreeing that you'll go to Delaware to bring an action, at least the way it reads to me. Second, someone can think there's a material breach of the contract, not say a thing, and the suddenly take legal action up to a year later? How about a chance to fix the breach? How about just getting rid of time periods?

Given the rights obfuscation and some of the other issues, unless this publication is paying a whole lot, I think a writer would be better with a whole different contract.