Contract Review: CurtCo - San Diego Magazine

When this contract came in, I thought of the one from CurtCo that I reviewed last October. However, the two documents are completely different, so I thought that a separate review would make sense. As always, I'm not a lawyer and these are my opinions, not legal advice. Also, just because I have a critical view of something in a contract doesn't mean that the publisher is unwilling to remove or alter a clause. Doesn't mean that they're willing, either, but if you don't ask, you don't get:

• In the very first paragraph, there is an unusual phrasing: that the commission is "to prepare and to supply by the below-specified date the following article for proposed inclusion." Proposed inclusion? I don't know that has any negative connotations, but, boy, it sure sounds tentative.


• Following that is the name of the article, the content, length, and delivery date. Unfortunately, the content description can be cryptic, so you should get a full description in an email. Because there is no clause specifying that the contract is the whole of the understanding, you'd have an argument that an email from an editor could be considered an amplification or explanation of the document.


• Next, if they accept the article, you get credit as author and get paid within 30 days of publication, which is not good. If publication gets delayed, so does your pay. And what happens if they accept the piece but never end up publishing it? Remember, the contract is for the proposed inclusion, and even if it wasn't, this is a typical danger of a pay-on-publication arrangement. It would be best to negotiate some language to give a date past which they have to pay you.


• In the same paragraph, you say that you won't include anything other than your writing "except for such excerpts from copyrighted works as may be included with the written permission of the copyright owners." If you're working on any kind of investigative piece, this could be a problem. What if you got a document that provided critical information, and you needed to quote a passage? I'd argue that you said in the contract that you wouldn't do that unless you obtained permission - even if you were clearly within fair use as allowed by US law.


• Furthermore, in the same paragraph, you promise that the article "does not infringe on patent, statutory, common law or proprietary right of others, or contain anything libelous." Although there is no indemnification clause in the document, so the risk is considerably less than might be otherwise, those are broad statements. As the contract also doesn't specify under which laws the contract is interpreted, you could, technically, be in breach of the contract under some obscure set of laws, somewhere in the world, assuming that the material is available there. (And if it's on the web, it's available.) I'd at least want to include that this was understood under US law and that it it will not "knowingly" infringe or contain anything libelous.


• Finally, another paragraph. The magazine can edit, retitle, or revise the article. You should get to see edits before the piece goes to press, and you should have the option of removing your name, just in case you find that the final product is now a professional embarrassment.


• The next paragraph has some very confusing language in terms of rights. The reason is that the magazine is trying to define first North American publishing rights (note, that's not the same as First North American Serial Rights) as something far more expansive. The phrase should mean the right to be first to publish in North America, which could mean something other than traditional print. But then the contract goes on to include "the right to copyright the article and all renewals thereof in the name of Curtco/SDM, LLC, as well as the right to reproduce, republish and/or reprint it in whole or in part, in any print or other media now known or hereafter devised." So while they use the first North American to set up an expectation of what the rights mean, they're saying that they have the right to copyright the article in their name. This is even more confusing, because you don't "copyright" an article - it already has copyright. You can register copyright, but that would mean that you are essentially ceding the right to hold copyright. However, it's not clear that it gives them exclusive rights beyond being the first to publish in North America. They do have rights to republish and reprint in any media, but it doesn't say that they have the right to license others or to syndicate. Normally that would come with copyright, but the wording is just too strange to bet on what it would mean. Best to get really clear between you and the publication exactly what they think they are getting, and then decide whether that is acceptable to you. If so, they should change the contract so it says what they mean, and not a jumble of phrases that could be expensive to work out in court.


• In the same paragraph, the magazine can deem that the article is "unacceptable for publication" and pay you a 25 percent kill fee, with all rights reverting to you. It might be good to negotiate that this is based on reasonable judgment based on normal industry standards.

This also tells you that CurtCo isn't necessarily monolithic in its approach to contracts. If an editor says, "this is the only contract the company has," you can point out that other publications in the corporate holdings have different contracts.