Contract Review: Delight

Someone sent this contract for Delight, published by Idea Outpost, for both my amusement and bemusement. You'll see why in a moment. Remember, I'm not a lawyer, this isn't legal advice, and I'd never personally assume that contract terms are immutable until proven otherwise:

• Receitals This sort of thing is generally straightforward, but I thought it was worth noting that the publisher works "in print and in electronic form on the World Wide Web and on DVDs and CDROMs" to create lifestyles and television programming magazines.


• Clause 1 The writer is an independent contractor and not an agent, employee, or partner of the publisher. Fair enough.


• Clause 2 Everything is work made for hire or, if it doesn't qualify, you have to sign over copyright. But the range of things they want to own is pretty scary: "newspaper articles, stories, reports, memoranda, drawings, photographs, ideas, suggestions,
  themes, plots, characterizations, dialogue, titles, designs and other work." Titles? Ideas? Suggestions? Oh, wait - I have a suggestion...


• Clause 3 A separte paper explains the topic - understood.


• Clause 4 Think having ideas be someone else's property is bad enough? "All Work is submitted on 'spec' and will only be remunerated upon acceptance by Publisher." You might wonder how different that is from most contracts that say work has to be accepted. As I repeatedly say, I'm no lawyer, but it seems to me that when you have a contract requiring acceptance, there is often an understanding that acceptance is something that must actively be denied, because the article didn't meet expectations. But with spec, things more become a matter of whim, as normally a publisher has no obligation toward spec work at all, and there isn't a legal contract. Maybe a court would say that these people are redefining spec, but it's an uncomfortable addition. Here's another: pay is 60 days after invoicing, and you don't get to send an invoice until the editor in chief asks for it. No indication of how long the EIC can delay in deciding if your work is accepted.


• Clause 5 There is a "time is of the essence" term, which, as they explicitly state, means that if you don't finish "in a timely manner," they can cancel the agreement. Timely would mean that they give you a date and you miss it. No provision for working out a new deadline because of problems.


• Clause 6 Here are the warranties, and some of them are a bit odd. For example, "Publisher shall not be required to make payments to any third party in connection with Publisher's use or exploitation of the Work or any portion thereof." That's way too broad, as you have no control over how they use what you write. What if they do something that gets them sued, like totally rewriting your piece and adding information you didn't provide? You're essentially saying that no matter what they do, they can't be forced into paying anyone else money. They'd probably claim that they don't want to pay for something you include in your article, but the wording is more far reaching than that. You must additionally promise that the "Work does not and will not infringe upon or violate any intellectual property right or other right of any person or entity." But this extends far beyond copyright alone.


• Clause 7 This reiterates that they can do anything with what you write at all, and use it in any medium.


• Clause 8 You have to "conform to general readability standards in the computer and high technology field" (not sure that's necessarily all that desirable, given that this would include every bad user manual in existence) and you must turn in something in Microsoft Word. (Forget the fact that Word can read text and RTF, or rich text format, files.) Now check this: "The Writer acknowledges and represents if the Work fails to conform to the general readability standards of the computer and high technology field, Publisher has the sole and unilateral right to refuse to compensate the Writer and/or publish any said Work." And/or publish? Does this mean that they could go ahead and publish anyway and still refuse to pay? Sure reads that way.


• Clause 9 If you breach "any term and condition" of the agreement, they can cancel the contract. But who referees if there really was a breach? What if it's a minor breach? Why not time to fix a breach if possible, a very common inclusion in contracts?


• Clause 10 This is pretty straightforward in saying that you're not an employee and are responsible for your own taxes, et. al.


• Clause 11 If they need you to fill out paperwork so they can own what you write, you have to.


• Clause 12 This is the entire contract, so no matter what an editor tells you, it all applies. It's interpreted under Wisconsin law, but you are not required to take up legal action there.


• Clause 13 "Writer agrees to hold Publisher harmless from and against all damages, losses, costs, expenses (including reasonable attorney's fees and costs) which Publisher may suffer or incur by reason of the breach of any of the representations, warranties or agreements made herein." I'm including the whole of this clause because, to my eyes at least, it doesn't really make sense. Holding the publisher harmless would typically mean that you don't blame the publisher if specific things happen. But how do you hold a publisher harmless from and against damages which the publisher might suffer? I think they wanted an indemnification clause.