Contract Review: American Express Publishing

Just got one of these contracts crossing my desk - please remember:

• I'm not a lawyer.
• This isn't legal advice.
• It's always smart to at least try negotiating changes that you want.

Now that we've gone through the usual, time to look at the contract:

• Section 0 So it's not really called zero but is the first sentence in the agreement. Because the contract is between you and American Express Publishing, don't let the assigning magazine name limit your interpretation of rights clauses.


• Section 1 This is an ongoing contract covering your assignments for the publisher until one of you terminates it. Notice that they talk about articles that would be "suitable for publication in Departures and Black Ink magazine." In other words, there seems to be an assumption that it could appear in one or both.


• Section 2 You must file electronically as the editor says no later than the date in the assignment letter you get. The clause includes the phrase "time being of the essence," which means timing is so critical that even being a day late might be enough to let the publisher kill the assignment without paying you. There is no provision for getting a verbal OK from an editor to have a few more days. If they don't accept a piece, they can keep sending it back for more correction until it's the way they like, and you are agreeing in advance to meet whatever time deadline you're given for the revision, again time being of the essence.


• Section 3 They have the right to publish the work first. They get a wide range of exlcusive uses, from their acceptance to six months after first publication. Those uses include creating derivative works (book or made-for-TV movie, for examples), republishing and reprinting, translation and publication of any translation, publicly perform and display the work, license any rights in it at all anywhere in the world. Even after the exclusivity period is over, they can continue to license the work anywhere. You give up so-called moral rights, but they agree to exercise "reasonable editorial judgment to respect the integrity of the Work," a clause that is nice to see, particularly as you don't get moral rights if you're a US writer. You can use other rights as you want, but there's a big catch: "You agree to ensure that the Magazine will receive the following credit upon the exercise of any of the rights retained by you in the Works: 'First published in Departures] in 2008, which credit shall be placed in close proximity to the applicable Work and be of the same size and style as credits customarily given to first publishers of similar works." That should more reasonably be that you'd try to get that done, but you don't control the publisher and cannot ensure that the credit will actually appear. In addition, this tangles up your marketing, and you want to be able to licese a use even if the publisher won't consider a credit to another publisher.


• Section 4 Here's another secretly sticky clause. You grant them the right to use your bio, name, picture, and even voice "in connection with Publisher’s exploitation of the rights granted in this Agreement, whether in a commercial or editorial context." So, if the publisher licenses an article in a commercial context, even if it makes this look like an advertorial or worse, you can be associated with it. That could be a problem if an editorial client took objection to your doing such "commercial" work, even if you did it as editorial. Now, it's not unusual for virtually any publisher to provide reprints to companies mentioned in an article, but this is something you want to be aware of, as there is no limitation on what they can do.


• Section 5 You get paid the fee mentioned in the assignment letter on acceptance, though it doesn't say how long they have to pay. Also, they can decide to not accept a piece (apparently for any reason) and only pay a kill fee of 25 percent.


• Section 6 This gives the details of getting reimbursed for pre-approved expenses.


• Section 7 You agree that until the end of the exclusivity period or notification of non-acceptance, whichever comes first, you won't license an article that is "substantially similar." Remember, though, that the exclusivity only ends six months after pubication, so this could put the story and your approach on ice virtually forever. In areas that publish an international edition, that extends to 18 months. I've been asking publishers for a window - maybe a year - past which such exclusive rights and first uses go out the window.


• Section 8 You are responsible for fact-checking, and they can do so on top of what you do.


• Section 9 Here is the warranties section. You assure them that you own the work and that it hasn't been previously published or commercially used. You promise that there is nothing defamatory or obscene, that infringes someone else's rights, or that breaches a confidentiality agreement that you have signed. Because, as we'll see later, this is interpreted under New York State law, you're probably in good shape, though a "knowingly" would be nice. You agree that you'll obtain official permission for any material you don't own. Any legal permissions you get in writing you must be ready to copy and send the copies to them. Because of the phrasing, you're technically obligated, so far as I can tell, to get written permission even for quotes from people you interview.


• Section 10 Either party can, in the face of the other side's material breach of the contract, request in writing that it be cured. The other party has 30 days to do so. If they don't, the first party can terminate the agreement.


• Section 11 You agree that you'll keep a copy. (Does this mean that there are writers who send in an assignment and then not keep a copy? That is a scary thought.)


• Section 12 The publisher can go to court to protect its rights from other parties, and you have the right to join in with your own lawyer.


• Section 13 A big problem here - you indemnify the publisher both for actually breaches and alleged breaches. The alleged language should come out. The publisher can withhold money it owes you should someone have a legal claim that the publisher attributes to you and should it decide that it wants money to cover its costs.


• Section 14. This says that you are independent of the publisher and lists the things for which you are responsible.


• Section 15 You have no right to use the publisher's logos, trademarks, etc., that would imply endorsement by the publisher. So, unless you get explicit permission, forget about including a magazine cover image to go along with your article on your own web site.


• Section 16 You won't divulge the double-secret business plans of the publisher.


• Section 17 While the publisher can assign its rights and obligations to other parties, you may not. Technically that would mean you couldn't pay someone to do research for you.


• Section 18 You both agree to interpret the contract under New York State law. Furthermore, you agree not to litigate claims on a class action basis (sounds like someone trying to avoid another class action copyright suit). You also waive the ability to seek "consequential, incidental, exemplary, special or punitive damages," which means that if they could find a way to infringe your copyright on the article, you couldn't use access to extra damages, even if you had registered your copyright in time. Other than agreeing to NY law, this sounds like a section you'd want to kill.


• Section 19 This is the entire agreement, no matter what an editor might promise instead either on the phone or through an email.


• Section 20 If you both want to change the contract, it must be done in writing.


• Section 21 Some sections of the contract - for example, the rights grant - survives even a termination of the agreement. (However, if one of you terminates the agreement before they use the article, that doesn't mean they can keep the rights.)