Review: Real Simple Freelance Writer Agreement

A fairly recent copy of the Real Simple agreement hit my inbox. Here's my review of it - and please remember that I'm not a lawyer and that this isn't legal advice:

1. The first section mentions the working title of the article and an approximate assigned length. Unfortunately, there is no detailed description of what the article should cover. You should do that via a confirmation email or other written form that provides evidence of the details and approach. Also, it gives an approximate assigned length. I don't think that is anything to get too concerned over so long as any requests for additional material aren't too extensive. But if they are, remember that this is not a contract offering an open ended amount of writing from you for a fixed price from them.


2. This clause specifies the fee if accepted. There doesn't seem to be a definition anywhere in the contract of what constitutes acceptance, nor of how long they can wait before they do accept it. It would be best to add something that spells these out. Also, there is a kill fee, but the clause doesn't explicitly say that the writer retains all rights, and no rights are transferred or licensed, if the article is rejected and a kill fee paid. Although I can't see a court saying that the publisher retains any rights, as it is rejecting the piece, it would be good to have the non-transfer of rights explicitly stated, so that there could never be a question.


3. This is a work made for hire contract, so you would lose all rights to the article if they accept it. That means you cannot, without their permission, legally resell the article or even post it on your web site.


4. There are no real restrictions on how often or to what extent they can have you make changes or do fact checking, as there isn't even a "reasonable" limitation on what they ask of you. That means if they typically run people through hoops, you'll be a-jumpin'.


5. They don't have to publish the article, even if they accept it. If they don't publish it but pay you the full amount, you don't get the rights back.


6. They can use your name, image, and biographical data not just to promote the article, but in advertising and in promoting the magazine. Practically speaking, this probably isn't going to be a problem.


7. This clause states that you're not an employee and shouldn't expect any benefits.


8. If you want expenses reimbursed, you have to get the magazine to pre-approve them, and you'll need to submit a "written accounting in a form acceptable to" the magazine.


9. You work at your own place, but will "consult with the editors at their office (or by telephone or fax) at their reasonable request." Notice what is missing? Email. I'm certain that is a simple oversight, but one their lawyers really should correct.


10. Now we get into something sticky. The warranties in this clause ask for the usual - no copyright infringement, no defamation, no infringement of third party rights, and so on. Other than the copyright infringement, I'd strongly suggest adding "knowingly" and making sure that these are all understood under US law. Unlike many contracts, there is no clause that states which laws are used to interpret the contract. That leaves open the possibility of being caught under laws that you don't foresee. For example, someone could sue you in the UK or Canada for libel, where the courts strongly favor plaintiffs, and not the writers as is true in the US. Furthermore, there is an indemnification clause in which you are supposed to indemnify Time Inc. for a breach of the warranties or representations, or for "an allegation which if true would constitute a breach." That, for me, is one of the deal breaker phrases, because even if you haven't done a thing, should someone accuse you, you're on the indemnification hook.