Contract Review: Body+Soul

A review of the Body+Soul contract from Body+Soul Omnimedia, owned by Martha Stewart Living Omnimedia. As always, I'm not a lawyer and this isn't legal advice:

1. Section 1. This clause basically sets the groundwork for the publisher to say that you really are a freelance writer, and not a de facto employee. No big deal here.


2. Section 2. This contract isn't for one piece, but everything you do going forward, so don't plan on signing it and counting on getting something better later on. This may well be it. It says that, on request, you'll submit a revised draft with any changes they ask for, but it does seem to limit things to that one revision. On acceptance - and they don't define what acceptance means to them, which, as you should know, can effectively mean pay on publication for some companies - they pay you the fee you agree upon. (Remember, this is a general contract, so you have to make sure that specifics of pay, deadline, topic, etc. are specified in an assignment memo.) If they don't accept it, then you get a kill fee, and that, also, is something you and B+S must have agreed upon. Make sure it, too, is in an assignment memo. They need to approve expenses in writing and in advance, but you get them even if they don't accept the piece. Note this phrase: "You understand that your compensation will be the same regardless of the numbers of hours you work to complete the Project." That means, if it takes more time than you think, you are saying that you're being paid enough. The last sentence in this section states: "Acceptance of the Project shall be within B+S’s sole discretion, and B+S shall have absolute approval and control over the results of the Project. " It would be far better if it was within their "reasonable discretion," otherwise they can use a kill fee to compensate for some editorial screw-up or people changing their minds after the fact about assignments.


3. Section 3. Again, this concerns setting the groundwork for recognition that you are a freelance writer and not an employee.


4. Section 4. More about being self-employed - that they will send you a 1099 and that you're responsible for your own taxes, insurance, and what not.


5. Section 6. This ensures that most of the rest of the contract - including parts discussion rights, warranties, and indemnification - survive the end of the assignment.


6. Section 7. This is a work made for hire, which means they own what you write for them and are technically the authors of the material. It doesn't include notes; just the drafts you turn in. Even if they edit what you've given them, they still have the rights to what you provided, so you can't use what wasn't published and say that it wasn't covered, because it was. You don't have moral rights, which don't exist for US writers, but do for those of many other countries, including Canada. A real interesting addition is the last sentence: "You also hereby waive the right to seek or obtain any injunctive or other equitable relief in connection with B+S’s exploitation of the Work and any rights therein." In other words, they don't want any challenge that could force them to stop what they are doing. That may sound unimportant, but let's try a hypothetical. You write an article for them, and then have the idea of doing a book. Suddenly, they want to stop you, claiming that the book is a derivative work based on the article, and they start contacting publishers claiming this. Although a court can grant equitable relief, in which it forces a person or entity to stop a certain action, it couldn't keep them from talking to publishers, as you've given up the right to ask the court for that sort of help. I'm not suggesting that the specific scenario is even close to likely. However, waiving rights to equitable relief can come back to snap at your rear at the worst possible time.


7. Section 7. They reiterate that they can do as they want with the material, which is their right. But, they also want the right to use your name, bio, and image " in connection with the businesses of B+S and any of its affiliates." That's not just promoting the article, but could be using you as a way to promote some other project based on the article, and you have no idea who their affiliates might be at any given time.


8. Section 8. This is another section about portraying you as self-employed. I don't know why they didn't collect all this stuff in one place and take care of it at the same time.


9. Section 9. Here's another problem tied to equitable relief. If you have a dispute with them, you are giving them permission to automatically get a court to provide them with an injunction against you or to grant some other form of equitable relief. Although you aren't allowed to have it, they expect you to authorize them to have it without a court even having a chance to rule it unreasonable. This is called stacking the deck in their lawyers' favor.


10. Section 10. "You agree not to use or disclose to any third party for any reason whatsoever any material provided to you by us or any information regarding Martha Stewart, B+S and/or the Magazine which you may have learned (directly or indirectly) in the course of the Project unless you are required to use or disclose such material and/or information in accordance with this agreement or by law, or B+S consents in writing in advance to such use or disclosure." In other words, beyond not giving away information on what the magazine is planning, you can't talk to other writers about what you've been able to negotiation, what the pay is, or what the contract terms are.


11. Section 11. Even more on being an independently self-employed person.


12. Section 12. This is the warranties section. Take a look at the exact wording, because it's even more extensive than many: "You represent and warrant that (i) you have the right to enter into and perform your obligations pursuant to this agreement, and to grant the rights herein granted to B+S; (ii) the Work will be original to you; (iii) neither the Work, nor B+S’s exercise of any of the rights in the Work granted hereunder, shall infringe, violate or otherwise conflict with the rights of any third party; and (iv) you shall not challenge, dispute or otherwise act in conflict with B+S’s exclusive ownership of the Work, any rights therein and/or B+S’s rights in and to any name, trademarks, trade names, logos and/or other tangible or intangible property of B+S." First, you say that you can enter the agreement and that you own the rights they want. Fair enough. Next, your work must be original. Fine. However, item iii gets to be a problem. Not only do you have to promise that what you wrote will not "infringe, violate or otherwise conflict with the rights of any third party" ("knowingly" would be good, but at least it's interpreted under New York law), but that the publisher's exercise of those rights won't cause a problem. But that's a problem right there. Exercise of rights includes editing, adding material, rewriting, pairing the article with art, and otherwise do things that could, among other effects, cause someone to want to sue. It's not just what someone publishes, but the context that might lead the audience to interpret the content in a given way. And then, in iv, you agree that you won't legally challenge their rights. Now, I don't see why a writer would do that, or under what circumstances, but I get leery of any contract that wants me to forgo legal options for any possible situation in the future.


13. Section 13. Now comes the indemnication - not just for B+S, but anyone it's doing business with - for any breach or alleged breach of the contract. That breach or alleged breach (which should be enough to kill the deal on its own) can be due either to the piece itself, but the use of the rights the magazine makes. And it's not for reasonable costs and expenses, but all costs, including all attorneys' fees and court fees, "without limitation." That's a non-start clause, from my view.


14. Section 14. Once again, if they hurt you legally, you are agreeing that all you can ask for is money damages and no equitable relief. But would a court ordering them to pay something immediately now be considered equitable relief, because it went to controlling behavior and not assignment monetary damages? I don't know.


15. Section 15. New York law is the basis for interpreting the contract, and that should be fine. But if you have a problem with them, including having to sue to get paid, you'd have to go to New York county in New York state to take action.


16. Section 16. This agreement is the entirety of your understanding. If an editor says, "Oh, don't worry about that," worrry about that. The editor has no power to tell you that part of the contract won't apply. Any change has to be in writing.

All in all, this is a contract I would pass on.