Contract Review: More

Someone asked me to review a recent MORE publication contract. Please remember that I'm not a lawyer, that this is not legal advice, and that it's always possible to try and negotiation contract changes with publishers. Also, be aware that Meredith is known for having multiple contracts, so my review of this version may not be of help if you get a different one.

• Introductory paragraph: Although there is an indication at the top of this contract that the magazine is More, this contract is with Meredith for any writing you do for the company.


• The Works: This clause indicates that you're signing a master agreement, because it covers any writing you do for the company, and that you retain ownership of the writing you do. So, the next time a Meredith editor tells you that the company only has a work made for hire contract, tell them, at least as of the first quarter of 2008, you know that to be incorrect. Also, be careful if you also write for the custom publishing arm, which, I believe, is WMFH. You want to be sure that any subsequent contract does not restrict your ownership rights in the regular publications.


• Schedules: This says that you get an additional paper for each assignment that will have the specifics, like length, subject, and date. The second sentence is confusing: "Each Schedule shall set forth a description, due date(s) and fee for the Work(s), and a term (the "Term") if Creator is a contributing editor." I'm not sure what the term is, and it's not clear whether being a contributing editor applies only to that last part or the entire thing. However, as this License Agreement governs all work you do for them, I'm guessing that it's the term part that only applies to contributing editors. Meredith would still have to explain what it wanted and what it was paying.


• Grant of Rights: The first subsection, (a), states that the following rights are exclusive, so be careful, because what you sign away you don't have. There is the first right to publish (first to be in print) in More. They keep that exclusive for six months after the actual publication date. If they delay, you cannot exercise other rights that would have the article in print until they finally do put it into the magazine. So, for example, if they delay by three months, you cannot license the use in another magazine anywhere in the world, although you could allow a movie adaptation. They also want "the right to reproduce and distribute the Work as part of the issue of the Magazine in which it appears, in print and electronic forms and in any other device, medium or mode of communication, whether now known or hereafter developed, throughout the World." That means they can reprint the magazine or put the magazine into an electronic database. But because that's as part of the issue of the magazine, the exclusivity of that is fine, because you can't reproduce it as part of the magazine without their permission anyway.
  
  The next part gets a little slippery. The have the first as well as the ongoing right to publish the article in electronic form on their web site. The right to put it on the web is also exclusive "from the date hereof until six (6) months after the first publication of the Work by Meredith." The question is what "first publication" means. They don't say print publication, so the minute they put it on the web, the clock on online use starts ticking for them, whether it's appeared in the magazine or not. After six months, they get non-exclusive rights to have it on the web. Personally, I'd try negotiating for one month exclusivity, online or print, and then try to compromise at two to three months instead of six, which seems too grabby. But that's me. Happily, they specifically mention the site address - www.more.com - so they can't use it on any other Meredith-owned site during that period. Then there is subsection (b).
  
  After the exclusivity period, you grant an ongoing non-exclusive license "to use the Works, including, but not limited to, the right(s) to print, publish, display, perform, reproduce and use the Work in all forms, works and derivative works." That "but not limited to" is a tricky phrase, because it means they can essentially do anything with the Work that they want, including creating new materials based on it (even a screenplay if they wanted). I think that would also let them use the article on any other of their web sites, so it would probably be wise to explicitly limit them to putting articles only on more.com and not on other magazine web sites.
  
  The next part is "to edit, abridge, adapt, translate or modify or alter the Works," so they can change it however they want without your permission. Next, "to publish or authorize the publication of the Works and distribute and sell the Works in all devices, media or modes of communications, whether now known or hereafter developed, throughout the World." So they could sell it to people using an ebook reader like Amazon's Kindle, or even on the Amazon site, as a standalone article. That's what the "authorize the publication" does - let them tell others they can publish it.


• Waiver of Moral Rights: Although US writers don't have so-called moral rights, writers in many other countries do, so if you're in Canada or the UK, you're giving up protections that you would otherwise have.


• Payment: Payment is on acceptance, but there is nothing in the contract that indicates when that happens. A modification like "acceptance, which will not be unreasonably delayed or denied" could be useful if they are looking at it promptly.


• Kill Fee: This is not a great version of a kill fee clause. The company may pay "at its option" a 25 percent kill fee, should it not accept an article. But that means an editor could decide not to pay. All rights immediately return to you if they pay the kill fee, but it actually doesn't explicitly say that rejection means all rights revert. I don't see how any court could keep you from taking the rights if they rejected the piece and didn't pay, but better to have these bases covered explicitly so you never have to get into a legal hassle. If they accept the piece, then they have to pay, but they don't have to use it and they retain their rights. That essentially puts the piece on ice. It would be good to add a clause that if they accept it, they have some period of time, maybe six or nine months, in which to make use of their exclusive rights or to lose them. If you own the piece, why should you lose all future value that they acknowledge you should have just because they don't do anything with it?


• Verification: You are responsible for doing all the research and turning in a piece "in accordance with Meredith's customary deadlines," but there is nothing about what those deadlines are, so be sure they are explicitly put into the assignment. You have to retain all notes, drafts, etc. for three years, and you have to cooperate with their editing process and make all "reasonably requested" changes.


• Subject Exclusivity: You cannot "write, publish, or cooperate in the publication of another work in any medium now known or hereafter developed on the same or a similar subject as any Work until the earlier of a) ninety (90) days after the date of the first publication of such Work by Meredith; or b) twelve (12) months after submission of the final version of the Work to Meredith." That should be restricted to directly competing publications. Why should you not cover the same topic for a completely different type of publication and audience? And there is a competitive publication clause later on.


• Republication: If you resell an article, you have to credit them. Get them to change that to you'll make best efforts or, better yet, strike the clause. You cannot control what another publisher will do, even if it agrees to such a clause, and the insistence could make it impossible for you to make a sale, which is unreasonable.


• Competitive Publications: This is a hidden stinker. You can't allow a magazine or web site "competitive to the Magazine or Site" to run the piece at any time, unless that magazine or site is owned by Meredith. There is a list that they include as an addendum, but they go on to say that this isn't limited to that list. Let them be satisfied with the list. By saying that you can allow republication in another Meredith title, I think they are essentially admitting that they don't have the right to run the article in another of their magazines, which would potentially be a contradiction to the material in the rights section. In short, push to say that they will only use it in the More magazine and web site earlier on.
  
  If you're a contributing editor, this is even stickier, because there is a separate clause stating that you cannot have anything you write appear in any competitive publication without their written approval. Not just something that you wrote for Meredith, but anything you write.


• Use of Creator's Name: They can use your name, a bio that you approve, and your likeness to promote the article, no matter what Meredith magazine or web site it's in. A positive note is that they don't have the right to authorize another to use them.


• Representations and Warranties: You say that what you write is original and not previously published or, if previously published, you have the right to license the material on an unlimited basis. If you got any part from a third party, you need written consent to use the material on an unlimited basis. This last part is actually a little tricky. That would technically include quotes from an interview, because once you record or write down what the other person says, they have a copyright interest in it. You could say that giving the interview is tacit approval, but this section of the agreement says that you need written consent, so to meet your obligation, you need a release for every interview subject. I'm not saying that the editors realize this, but, at least from what I can see in the wording, that is your obligation. There is the standard stuff about having the authority to sign this agreement and the full unencumbered rights to license the rights that Meredith seeks.
  
  Now we have another tricky part: "that the Works do not contain any scandalous, libelous, or unlawful matter; and that the publication of the Works will not infringe on any third party's copyright or other rights, including, without limitation, the rights of privacy and publicity." When writers question such clauses, editors say, "Why can't you guarantee that you won't plagiarize?" But while the clause says that you won't infringe copyright, it goes a lot farther, mentioning, without any limitation, other rights. Rights of privacy and publicity depend greatly on the specific law governing them. In this case, as the contract states later, the applicable laws are of New York State, so even if someone takes offense and takes up legal action in Canada or the UK, the definition of these rights would have to be examined under New York law. Also, it should be that what you write "will not knowingly infringe."
  
  You have to use best efforts to check the accuracy of non-fiction work and to avoid appearance of conflict of interest. There is also a sentence where you say "Creator will hold Meredith harmless for any breach of these warranties and agrees to cooperate fully with Meredith in responding to or defending against any third-party claims relating to the Works." Good news is there is no indemnification (the lack of which doesn't mean that a publisher cannot sue you if it thinks it is spending money for a big mistake on your part). The hold harmless is for any breach of the warranties. As you are making the warranties, I think that you would have to be the one to breach them, and if you do, you cannot sue Meredith for that. However, if there is a problem because Meredith made a change that caused the problem, I don't think you'd be limited from suing them.


• Termination: Either party can terminate the agreement or any of the schedules (read that as assignments) with 45 days notice. So, you could get an assignment and, if it were due longer than 45 days out, have an editor cancel it.


• Confidentiality: You can't talk about what you know is coming up in the magazine, or about story ideas or sources that don't end up in an article. Also, you're not allowed to discuss or disclose the terms of this contract, a type of clause I don't particularly like, as writers talk and should be able to.


• Independent Contractors: You say that you're not an employee, you're responsible for your own benefits and taxes, and you get paid as an independent person.


• Entire Agreement: If an editor says, "Oh, don't worry about that clause, we wouldn't enforce it," worry. This clause says that no such comment, whether verbal or written, would have any bearing on the contract as it is.
  
• Governing Law: New York State law governs the agreement, which is good. But if there is any kind of legal dispute, you are agreeing that you have to resolve things in the courts of either Des Moines, Iowa or New York City.