Contract Review: FenderBender

FenderBender is a trade publication for auto collision repair businesses. Please remember that, as always, I'm not a lawyer and this isn't legal advice, and that it's always best to try negotiation to get changes in contracts:

• Assignment Details I thought this part was thoroughly spelled out. Not only was there a working title and paragraph summary, but provided information on the publication, important reader demographics, and the general things they look for in an article.


• Section 1 - Rights Subsection a asks for First North American publication rights (note, that is not necessarily the same as FNASR). They specifically include "the rights to distribute, after publication by FenderBender, copies of the article(s) as it appeared in FenderBender, or other FenderBender publications."
  
  Subsection b allows them to "reprint or reuse" the article on the web, but doesn't pin them down to their own web site. That could be interpreted as letting them "use" it elsewhere, including on sites that aren't their own. They can also allow "limited reproduction" for non-commercial purposes, but include public broadcasting, which does normally pay for work. There is also no definition of what limited reproduction means - would 100,000 copies of an article be limited? Sure, if they don't print any more, then by one use of the word, it is limited. They can put it into a computer database, though the language here doesn't specifically allow them to sublicense that use, but it does include "published by or at the direction of FederBender," which would effectively be the same, I think. It might be good to ask for a bit more money for the database use and perhaps to keep public broadcasting out of the mix, unless you are getting a cut of those revenues. Even better - ask what they do with public broadcasting and, if they say nothing, ask to take the clause out.
  
  In subsection c, if you resell the piece to someone else, you have to tell them, at which point they can demand a credit line or forbid the use of their name in the article. On general principle, I dislike having to give a publication credit for something I wrote - they can do their own marketing. Couple that with not even knowing whether they will invoke this until after the sale is made, turning it into a condition after the fact, and this becomes a clause that should go (along with the i and ii parts).


• Section 2 - Payments Payment is within 60 days after acceptance, with the provision for "a reasonable request for revisions." Two months are overly generous terms, in my mind, though at least they're saying this up front and not pretending that it will come in 30 only to delay. But pushing back on this would be advisable. Also, there is no definition of how quickly acceptance has to happen. It would be good to add some reasonable time frame for it to occur. Ideally, you would have a provision that said after a certain amount of time, maybe 2 or 4 weeks, acceptance automatically happened.


• Section 3 - Issue Date They can hold an article for a later date. That seems fine, until you realize that if they have first publication in North America, you cannot resell in the continent until after they publish it. So perhaps something that revokes the first publication promise if it doesn't run in some reasonable window - 6 months, perhaps?


• Section 4 - Payment Penalties They want at least one week notice if the article will be late, and they consider deadlines absolute. If you don't give them that much notice, or if they don't give permission, then it's 10 percent off your fee if you're 1 to 3 days late, and if it's 4 or more days, then 20 percent and no guarantee that they will accept it. This is the type of clause that usually comes in becasue a publication has been badly burned in the past. You can try to negotiate that out, but then they will reasonably ask, "why can't you live with getting it in on time?" This might be one where you just have to be sure to be done on time or even early. You could try getting rid of the one week notification for a real last minute problem that you cannot anticipate.


• Section 5 - Kill Fee If they deem the article "unacceptable for publication for any reason," including a "reasonable revision period" if the article is submitted on time, then they pay a 20 percent kill fee and you get the rights back. The "any reason" wording is disturbing. That could technically include their changing requirements on sources or slant after they saw what you submitted. A kill fee should only be invoked when the writer submits something of less than professional quality and standards. That means if you do a professional job and cover what they requested, they shouldn't be able to turn it down.


• Section 6 - Independent Status This is pretty standard wording that you work for yourself, not them, and that you're responsible for your own taxes, insurance, and benefits.


• Section 7 - Termination Either side can immediately terminate the contract with clause, which includes (but is not necessarily limited to) a material breach of the contract or "any act exposing the other party to liability" or personal or property damage. If they terminate, they pay only "for those items The Writer has already satisfactorily completed." What items? There is only the one article described in a one-off contract. Do they mean the time spent? This is unclear.


• Section 8 - Miscellaneous This is the clean-up section, where you agree, among other things, that any dispute is covered by Minnesota law, although you don't have to take action in Minnesota.

Overall, the clarity of the opening section breaks down and you're left with some parts that should be changed for your own protection.