Contract Review: Luxe (Sandow Media)

Please remember that I'm not a lawyer and that this isn't legal advice:

• Clause 1: Deadline Be aware that the deadline clause not only includes one for the article draft, but a second one, that can be only three days later, for any revisions. Be sure you're looking at your work calendar before agreeing to this - because there is nothing that says you're going to get the revisions back the same day you turn the article in. What if you get questions or notes - or a major revision request - the day you're due to respond?


• Clause 2: Rights In (a), you provide "exclusive worldwide rights to publish the Work in all languages and in any and all editions of any or all of SMC, its subsidiaries and/or affiliates magazines and/or books ... including but not limited to editions in electronic form" for five years from the date you turn it in. That will kill much of the market for anything but the more resilient of evergreens. However, there is more. In (b), you turn over exclusive rights to republish pretty much anyplace, and without a time restriction. In (c), you provide exclusive rights to license the piece to others, also without a time limit, and in (d) you provide exclusive rights to reproduce the work or parts of it for advertising, sales promotion, and publicity pieces, also without any time limitation. I'm not sure that leaves anything you could do with it at all at any time. Between the republishing and licensing being covered exclusively forever, traditional and electronic publishing are out. Could you sell rights for a movie deal? I'm not sure that you could, because you've given up the right to license the material. In short, this effectively ties up all the commercial rights, whether directly stating them or not, forever. You keep copyright, but there's nothing you can do with it.


• Clause 3: Payment You get a fixed fee, nothing more, and that only comes "after final acceptance," but there is no definition of when that happens. I'm guessing that it's after any changes you do, and, maybe, not until it gets signed off before it goes into the magazine.


• Clause 4: Kill Fees Oh, this is painful to read. The publisher can decide, in it's sole discretion (whatever it feels like doing), even if the writing is "complete" and "reasonably acceptable," not to accept and to pay 30 percent of the original fee instead. Furthermore, it has a provision I've never seen in a magazine contract: "In the event that SMC accepts the Work but advises you that a rewrite by another person is required, and such other person does rewrite the Work, SMC shall have the right to reduce the Fee by the amount that SMC pays to have the Work rewritten or by 50 percent of the original Fee, whichever amount is lesser." If it says that it must have someone else do a rewrite - read that as editor, folks - then it can take out either the fee paid to that person or half of the original fee. There is nothing to say that the rewrite has to be done by someone someone who isn't an employee.


• Clause 5: Representations and Warranties In (a), you say that you own the rights and that the piece hasn't been published before. Fair enough. In (b), you say that you won't publish, and won't let someone else publish, the piece for one year from the submission deadline. But don't start thinking that you can do something with it, because that doesn't change the interpretation of the rights clause. I think it's just a bit of sloppiness on the part of the lawyer who drew this up. Subsection (c) is a problem. You say that the work "contains no matter that is obscene or libelous and does not infringe upon any statutory or common law copyright, proprietary right, or any other right of any person." But there's nothing that indicates the law under which this contract is understood. So if someone sues you in some other part of the world than the state in which you live, you're potentially in trouble. It would be good at least to add "knowingly" and something about this being interpreted under the law of some state that is reasonable in such issues. And (d) states, "No part of the Work is or will be known to be inaccurate or unsubstantiated by known fact." That leaves no room for an honest mistake, either on your part or that of a source.


• Clause 6: Indemnification You knew this was coming. You have to provide indemnification not just from an actual breach of the representations and warranties, but an alleged breach. I view that as a deal killer.


• Clause 7: Formatting I feel like I'm entering into the world of the strange. You must follow the formatting requirements in the publisher's writers guidelines, and change anything that doesn't adhere to the requirements. As I don't have a copy of the requirements, I cannot tell you what they involve.


• Clause 8: Revisions You agree to keep making changes that the publisher says are necessary "until considered acceptable." There's no limit to the number of times they can have you doing that. They can edit the work and have no obligation to show you the final version before it appears in the publication. You also let them use your name and likeness in promoting the work - at least that is restricted to the article itself and not attached to the magazine or to what any of the company's business partners do.


• Clause 9: Publication You get a "reasonable number" of copies.


• Clause 10: Confidentiality You cannot talk about the publisher's "publications, business plans, future publications, circulation, business models and/or business methodologies and like information," unless that information is already public, or if a court says that you must. The public knowledge part doesn't apply if it is public because of "a breach of this obligation of confidentiality," but how are you going to know that?