Contract Review: Adams Media

Here's my take on the latest Adams Media contract I've seen - and remember, I'm not a lawyer, this isn't legal advice, and always try to negotiation your contracts:

• First Paragraph They are calling the “Work” everything including the final draft, all interim drafts, and all drawings, photographs, and so on. This will cause a complication in about 14 seconds.


• Section 1. Acknowledgement of Rights. They want this to be work made for hire, which means once you’re done, you can never make another penny off it. They own it and can do with it as they like. That’s bad enough, but now for the problem I mentioned: The definition of work in the previous graph means that they’re not just talking about the finished product, but everything leading up to it, and everything in it. What if you use photographs from a collection with permission or want a drawing done? They want to own it, so they want you to get a copyright transfer. But what if the person with the rights isn’t willing to do that? There is no provision for having a permission form that is anything less than copyright assignment.


• Section 2. Right to Publish Work. They’re reiterating that they have all the rights and can do with this anything they want, and that you cannot.


• Section 3. Delivery of Manuscript. They've been known, as many other series publishers have done, to set deadlines assuming that you will send in material even before you’ve had a chance to see the contract. I’m a firm believer that all dates in contracts should be based on when they are signed, or at least when you got to basically agree to the deal. If you use photos, note the format in which they want them delivered. There is no allowance for digital photography, so technically, if you wanted to include a color digital photo, you’d have to get it turned into a slide.


• Section 4. Originality of the Work. It’s understandable that they don’t want plagiarized material, and they can use every means to make sure it’s original (though “every means” is too broadly stated). But there’s a bigger problem here: “At its sole discretion, the Publisher may deem a Work as containing plagiarized content, and therefore unacceptable, and may cancel this Agreement at any time, requesting return of all payments made to date.” Their sole discretion? In other words, they can declare you to be a plagiarist unilaterally, and you wouldn’t necessarily have any recourse to challenge the statement. How did they come to the conclusion? Where is their evidence? No mention of their having to produce any of that. At worst, this could become a club brought into play at any moment.


• Section 5. Revision of the Work. The first sentence, “Author shall promptly make such changes in the Work as the Publisher may request,” puts a time onus on you. They can ask for any change, you have to make it, and nothing about working under a “reasonable” schedule.


• Section 6. Publication of the Work. They can use your name and likeness and bio and authors others to do so in the process. However, there isn’t anything saying that they must give you credit. In fact, the last sentence starts, “In the event the author is credited on the cover…”


• Section 7. Background Information and Permissions. If you have people listed in photos, you may have to get them to sign releases, as well, which could be logistically impossible in some cases.


• Section 8. Verification of Facts. If you mention any facts – and who would do that in a non-fiction book? – you technically have to verify them all and give the “checking material” to them.


• Section 9. Author’s Warranties and Indemnity. The warranties are broad – you cannot write anything that, if published, will infringe rights of privacy or publicity, infringe copyright, or be libelous. Now, the contract is interpreted under Massachusetts law, so you could claim to be a journalist, which gives you more protection than the general populace gets. However, if you are mentioning others that are not public figures, you might well get releases from them to be safe. The indemnification is a problem because it has the phrase, “or any allegation which if true would constitute a breach.” In other words, if someone makes a claim of some injury that would be a breach of the warranties, you are indemnifying the publisher, even if you didn’t do anything. That sort of language is a deal-killer for me.


• Section 10. Compensation. They really are cheap bastards, aren’t they? Notice the last part: “The Author may also receive a fee for publicity appearances, if such appearances will be deemed necessary by the Publisher in writing.” It should be a reasonable request and you should be able to turn it down. They own the material, for heaven’s sake, so why should you be at their beck and call?


• Section 11. Termination. Subsection c is a problem, because they can terminate the Agreement at any time, “at its sole discretion,” before they formally accept the Work. That is ridiculous – they can kill the deal for any or no cause. The publisher also has complete control of whether it will let you keep anything or if it will pay you anything beyond what you had already received. If they decide to pay you what they think is a proportional amount, then they get the rights to what you have already written.


• Section 12. Independent Contract. This is pretty straightforward.


• Section 13. Notices. Again, straightforward and self-explanatory.


• Section 14. Waiver or Modification. Also straightforward.


• Section 15. Applicable Law. The contract is governed by Massachusetts law.


• Section 16. Arbitration. The arbitration clause is problematic. Not only does the process potentially eliminate such basic protections as discovery, but this clause doesn't even state which of the dozens of sets of rules of the AAA would be used, how many arbitrators would be involved, or how the arbitrators would be chosen. Arbitration is also a lot more expensive than most companies think, and depending on the rules, there can be hefty minimum dollar amounts that you can raise. And if you found they breached the contract and you had to take legal action, you might not want to travel to Boston for their convenience. Trying to get this clause struck would be wise.


• Section 17. Assigns. You cannot assign any of the work on this without getting written approval from the Publisher. I’d argue that it would cover research assistants and any other help that you might ordinarily use (or not).


• Section 18. Author copies. Self-explanatory.


• Section 19. Entire Agreement. This is the whole agreement, so don’t expect emails or verbal assurances from anyone at the publishing company to make any difference.


• Section 20. Notices and Payments. This clause generally says that money will be paid to the agent, and they can also have terms about the size of the agent’s commissions. Be sure that there is no conflict between what this says and anything you’ve previously signed with the agent. If this states something higher, then the agent now gets more. Generally, if I’m using an agent, I might direct money to be paid to the person (though I prefer having two checks cut – one for the agent and one for me), but if all the money goes to the agent, take out all the business about how much the agent should get. The agent isn’t a party to this contract, and, presumably, you already have an agreement with the person.

That’s about it – not a great contract, particularly with having to sign over the ownership at relatively low rates of pay.

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.)

Contract Review: Jenkins Group

Jenkins Group creates ghosted books for its clients. Given their volume and the number of writers they use, I thought it would make sense to post a review when I finally saw one of their contracts. Please remember that I'm not a lawyer, this isn't legal advice, and negotiating to get better terms is always a good idea:

• Section 1: Services to be Rendered In this section, the definition of work seems overly broad and, as I'll point out in another section, potentially confusing. It's not just the writing, but any ideas that you come up with as well as moral rights, which doesn't matter if you're a US writer because you don't have them. (It's a set of rights in the EU and some other places that provide protection for misuse of a person's work as well as of the creator's reputation.)


• Section 2: Schedule This is straightforward - you'll use the schedule in a project assignment form.


• Section 3: Grant of RightsHere is where things get confusing. You don't sign away copyright and this isn't work made for hire in this section, which would be refreshing for this type of project, except that you have to sign over rights in a later clause. But here, you're providing worldwide book rights exclusively to the "work" - which in this case means more than the drafts you turn in. How you have book rights in an idea just doesn't make sense to me. Would it mean that you couldn't write another book about the idea? I'm not sure that is the case, because book rights are a concept within the broader concept of copyright, and ideas do not enjoy copyright. So I suspect that it would not prevent it. Also, note that this leaves you free to use the material in articles, etc., so long as the writing doesn't appear in another book. Other than the confusion, this is pretty easy going.


• Section 4: Fees and Expenses This is clear - fees are specified in a project assignment.


• Section 5: Payment Fee schedules are specified in a project assignment, so it's tough to say at this point whether what they want is worth what they give in return.


• Section 6: Warranties and Indemnification Subsections A, B, and C are pretty straightforward. In D, you have to agree that you won't do a whole bunch of things. Luckily, the last clause in the contract specifies that the agreement is interpreted under Michigan law, so if someone sued in, say, the U.K. for libel, to be in breach of these warranties, I think they'd have to prove that the libel rose to the level required in the US and, specifically, in Michigan. That keeps you out of a lot of trouble when a contract effectively makes you consider any set of laws anywhere. If F, it would be better if indemnification was only invoked by the warranties, which is a traditional and reasonable approach. Any other alleged breach would be considered as a normal contractual dispute, and they certainly aren't offering to indemnify all of your expenses and costs if they breach any part of the agreement. G is a welcome sight, as you expressly are not responsible for what the client does.


• Section 7: Relationship of Parties This, too, is straightforward.


• Seciton 8: Ownership of the Work OK, now things get really confusing again. On one hand, this is WMFH, and yet they're still asking you to provide worldwide book rights, which, under this section, you clearly cannot do. Also, if doing WMFH on a ghosted book is acceptable to you (and it's hardly the only way copyright is handled under such circumstances), then it should be for the final version only, and not ideas, et. al. However, the assignment letter can state that notes, sketches, etc. would be yours, so it's something to negotiate. Better not to have the default be that it belongs to the client, though.


• Section 9: Releases
  It's reasonable enough for you to get releases, but what if you've been asked to incorporate some material by Jenkins or by the client? Then you should not be responsible for getting the rights, nor for any fees involved in doing so.


• Section 10: Arbitration They probably think that arbitration is good because it typically favors businesses, not individuals. However, arbitration can be more expensive than people realize (you're hiring lawyers and judges or trained mediators). The clause doesn't state which of the dozens of rule sets that the AAA has will be used. It doesn't state how many arbitrators will be involved nor how they're chosen. And it forces you to go to Traverse City, MI for any such dealings, unless it's for under $1,000. So, if they're very late in paying you and owe you $1,500, you cannot go to small claims court, and you can't sue them locally. You have to get arbitrators, and you may not get your fees reimbursed.


• Section 11: Term and TerminationIt's normal to have a breach cure provision as the one in here. But now combine that with the earlier clause about indemnification. If you "cure" a breach they claim, then you've effectively admitted that you did breach some part of the agreement, which would mean they could pass on their "costs," apparently without a limit.


• Section 12 There is no section 12 - they just skipped from 11 to 13.


• Section 13: Severability Again, this is pretty standard - having one part of a contract tossed doesn't mean that the whole thing goes out the window.


• Section 14: Miscellany Just some additional stuff, including having things governed by the laws of Michigan, as I mentioned before.

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.

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.

Contract Review: CurtCo - San Diego Magazine

When this contract came in, I thought of the one from CurtCo that I reviewed last October. However, the two documents are completely different, so I thought that a separate review would make sense. As always, I'm not a lawyer and these are my opinions, not legal advice. Also, just because I have a critical view of something in a contract doesn't mean that the publisher is unwilling to remove or alter a clause. Doesn't mean that they're willing, either, but if you don't ask, you don't get:

• In the very first paragraph, there is an unusual phrasing: that the commission is "to prepare and to supply by the below-specified date the following article for proposed inclusion." Proposed inclusion? I don't know that has any negative connotations, but, boy, it sure sounds tentative.


• Following that is the name of the article, the content, length, and delivery date. Unfortunately, the content description can be cryptic, so you should get a full description in an email. Because there is no clause specifying that the contract is the whole of the understanding, you'd have an argument that an email from an editor could be considered an amplification or explanation of the document.


• Next, if they accept the article, you get credit as author and get paid within 30 days of publication, which is not good. If publication gets delayed, so does your pay. And what happens if they accept the piece but never end up publishing it? Remember, the contract is for the proposed inclusion, and even if it wasn't, this is a typical danger of a pay-on-publication arrangement. It would be best to negotiate some language to give a date past which they have to pay you.


• In the same paragraph, you say that you won't include anything other than your writing "except for such excerpts from copyrighted works as may be included with the written permission of the copyright owners." If you're working on any kind of investigative piece, this could be a problem. What if you got a document that provided critical information, and you needed to quote a passage? I'd argue that you said in the contract that you wouldn't do that unless you obtained permission - even if you were clearly within fair use as allowed by US law.


• Furthermore, in the same paragraph, you promise that the article "does not infringe on patent, statutory, common law or proprietary right of others, or contain anything libelous." Although there is no indemnification clause in the document, so the risk is considerably less than might be otherwise, those are broad statements. As the contract also doesn't specify under which laws the contract is interpreted, you could, technically, be in breach of the contract under some obscure set of laws, somewhere in the world, assuming that the material is available there. (And if it's on the web, it's available.) I'd at least want to include that this was understood under US law and that it it will not "knowingly" infringe or contain anything libelous.


• Finally, another paragraph. The magazine can edit, retitle, or revise the article. You should get to see edits before the piece goes to press, and you should have the option of removing your name, just in case you find that the final product is now a professional embarrassment.


• The next paragraph has some very confusing language in terms of rights. The reason is that the magazine is trying to define first North American publishing rights (note, that's not the same as First North American Serial Rights) as something far more expansive. The phrase should mean the right to be first to publish in North America, which could mean something other than traditional print. But then the contract goes on to include "the right to copyright the article and all renewals thereof in the name of Curtco/SDM, LLC, as well as the right to reproduce, republish and/or reprint it in whole or in part, in any print or other media now known or hereafter devised." So while they use the first North American to set up an expectation of what the rights mean, they're saying that they have the right to copyright the article in their name. This is even more confusing, because you don't "copyright" an article - it already has copyright. You can register copyright, but that would mean that you are essentially ceding the right to hold copyright. However, it's not clear that it gives them exclusive rights beyond being the first to publish in North America. They do have rights to republish and reprint in any media, but it doesn't say that they have the right to license others or to syndicate. Normally that would come with copyright, but the wording is just too strange to bet on what it would mean. Best to get really clear between you and the publication exactly what they think they are getting, and then decide whether that is acceptable to you. If so, they should change the contract so it says what they mean, and not a jumble of phrases that could be expensive to work out in court.


• In the same paragraph, the magazine can deem that the article is "unacceptable for publication" and pay you a 25 percent kill fee, with all rights reverting to you. It might be good to negotiate that this is based on reasonable judgment based on normal industry standards.

This also tells you that CurtCo isn't necessarily monolithic in its approach to contracts. If an editor says, "this is the only contract the company has," you can point out that other publications in the corporate holdings have different contracts.

Contract Review: Luxe (Sandow Media)

Please remember that I'm not a lawyer and that this isn't legal advice:

• Clause 1: Deadline Be aware that the deadline clause not only includes one for the article draft, but a second one, that can be only three days later, for any revisions. Be sure you're looking at your work calendar before agreeing to this - because there is nothing that says you're going to get the revisions back the same day you turn the article in. What if you get questions or notes - or a major revision request - the day you're due to respond?


• Clause 2: Rights In (a), you provide "exclusive worldwide rights to publish the Work in all languages and in any and all editions of any or all of SMC, its subsidiaries and/or affiliates magazines and/or books ... including but not limited to editions in electronic form" for five years from the date you turn it in. That will kill much of the market for anything but the more resilient of evergreens. However, there is more. In (b), you turn over exclusive rights to republish pretty much anyplace, and without a time restriction. In (c), you provide exclusive rights to license the piece to others, also without a time limit, and in (d) you provide exclusive rights to reproduce the work or parts of it for advertising, sales promotion, and publicity pieces, also without any time limitation. I'm not sure that leaves anything you could do with it at all at any time. Between the republishing and licensing being covered exclusively forever, traditional and electronic publishing are out. Could you sell rights for a movie deal? I'm not sure that you could, because you've given up the right to license the material. In short, this effectively ties up all the commercial rights, whether directly stating them or not, forever. You keep copyright, but there's nothing you can do with it.


• Clause 3: Payment You get a fixed fee, nothing more, and that only comes "after final acceptance," but there is no definition of when that happens. I'm guessing that it's after any changes you do, and, maybe, not until it gets signed off before it goes into the magazine.


• Clause 4: Kill Fees Oh, this is painful to read. The publisher can decide, in it's sole discretion (whatever it feels like doing), even if the writing is "complete" and "reasonably acceptable," not to accept and to pay 30 percent of the original fee instead. Furthermore, it has a provision I've never seen in a magazine contract: "In the event that SMC accepts the Work but advises you that a rewrite by another person is required, and such other person does rewrite the Work, SMC shall have the right to reduce the Fee by the amount that SMC pays to have the Work rewritten or by 50 percent of the original Fee, whichever amount is lesser." If it says that it must have someone else do a rewrite - read that as editor, folks - then it can take out either the fee paid to that person or half of the original fee. There is nothing to say that the rewrite has to be done by someone someone who isn't an employee.


• Clause 5: Representations and Warranties In (a), you say that you own the rights and that the piece hasn't been published before. Fair enough. In (b), you say that you won't publish, and won't let someone else publish, the piece for one year from the submission deadline. But don't start thinking that you can do something with it, because that doesn't change the interpretation of the rights clause. I think it's just a bit of sloppiness on the part of the lawyer who drew this up. Subsection (c) is a problem. You say that the work "contains no matter that is obscene or libelous and does not infringe upon any statutory or common law copyright, proprietary right, or any other right of any person." But there's nothing that indicates the law under which this contract is understood. So if someone sues you in some other part of the world than the state in which you live, you're potentially in trouble. It would be good at least to add "knowingly" and something about this being interpreted under the law of some state that is reasonable in such issues. And (d) states, "No part of the Work is or will be known to be inaccurate or unsubstantiated by known fact." That leaves no room for an honest mistake, either on your part or that of a source.


• Clause 6: Indemnification You knew this was coming. You have to provide indemnification not just from an actual breach of the representations and warranties, but an alleged breach. I view that as a deal killer.


• Clause 7: Formatting I feel like I'm entering into the world of the strange. You must follow the formatting requirements in the publisher's writers guidelines, and change anything that doesn't adhere to the requirements. As I don't have a copy of the requirements, I cannot tell you what they involve.


• Clause 8: Revisions You agree to keep making changes that the publisher says are necessary "until considered acceptable." There's no limit to the number of times they can have you doing that. They can edit the work and have no obligation to show you the final version before it appears in the publication. You also let them use your name and likeness in promoting the work - at least that is restricted to the article itself and not attached to the magazine or to what any of the company's business partners do.


• Clause 9: Publication You get a "reasonable number" of copies.


• Clause 10: Confidentiality You cannot talk about the publisher's "publications, business plans, future publications, circulation, business models and/or business methodologies and like information," unless that information is already public, or if a court says that you must. The public knowledge part doesn't apply if it is public because of "a breach of this obligation of confidentiality," but how are you going to know that?
  

Contract Review: Body+Soul

A review of the Body+Soul contract from Body+Soul Omnimedia, owned by Martha Stewart Living Omnimedia. As always, I'm not a lawyer and this isn't legal advice:

1. Section 1. This clause basically sets the groundwork for the publisher to say that you really are a freelance writer, and not a de facto employee. No big deal here.


2. Section 2. This contract isn't for one piece, but everything you do going forward, so don't plan on signing it and counting on getting something better later on. This may well be it. It says that, on request, you'll submit a revised draft with any changes they ask for, but it does seem to limit things to that one revision. On acceptance - and they don't define what acceptance means to them, which, as you should know, can effectively mean pay on publication for some companies - they pay you the fee you agree upon. (Remember, this is a general contract, so you have to make sure that specifics of pay, deadline, topic, etc. are specified in an assignment memo.) If they don't accept it, then you get a kill fee, and that, also, is something you and B+S must have agreed upon. Make sure it, too, is in an assignment memo. They need to approve expenses in writing and in advance, but you get them even if they don't accept the piece. Note this phrase: "You understand that your compensation will be the same regardless of the numbers of hours you work to complete the Project." That means, if it takes more time than you think, you are saying that you're being paid enough. The last sentence in this section states: "Acceptance of the Project shall be within B+S’s sole discretion, and B+S shall have absolute approval and control over the results of the Project. " It would be far better if it was within their "reasonable discretion," otherwise they can use a kill fee to compensate for some editorial screw-up or people changing their minds after the fact about assignments.


3. Section 3. Again, this concerns setting the groundwork for recognition that you are a freelance writer and not an employee.


4. Section 4. More about being self-employed - that they will send you a 1099 and that you're responsible for your own taxes, insurance, and what not.


5. Section 6. This ensures that most of the rest of the contract - including parts discussion rights, warranties, and indemnification - survive the end of the assignment.


6. Section 7. This is a work made for hire, which means they own what you write for them and are technically the authors of the material. It doesn't include notes; just the drafts you turn in. Even if they edit what you've given them, they still have the rights to what you provided, so you can't use what wasn't published and say that it wasn't covered, because it was. You don't have moral rights, which don't exist for US writers, but do for those of many other countries, including Canada. A real interesting addition is the last sentence: "You also hereby waive the right to seek or obtain any injunctive or other equitable relief in connection with B+S’s exploitation of the Work and any rights therein." In other words, they don't want any challenge that could force them to stop what they are doing. That may sound unimportant, but let's try a hypothetical. You write an article for them, and then have the idea of doing a book. Suddenly, they want to stop you, claiming that the book is a derivative work based on the article, and they start contacting publishers claiming this. Although a court can grant equitable relief, in which it forces a person or entity to stop a certain action, it couldn't keep them from talking to publishers, as you've given up the right to ask the court for that sort of help. I'm not suggesting that the specific scenario is even close to likely. However, waiving rights to equitable relief can come back to snap at your rear at the worst possible time.


7. Section 7. They reiterate that they can do as they want with the material, which is their right. But, they also want the right to use your name, bio, and image " in connection with the businesses of B+S and any of its affiliates." That's not just promoting the article, but could be using you as a way to promote some other project based on the article, and you have no idea who their affiliates might be at any given time.


8. Section 8. This is another section about portraying you as self-employed. I don't know why they didn't collect all this stuff in one place and take care of it at the same time.


9. Section 9. Here's another problem tied to equitable relief. If you have a dispute with them, you are giving them permission to automatically get a court to provide them with an injunction against you or to grant some other form of equitable relief. Although you aren't allowed to have it, they expect you to authorize them to have it without a court even having a chance to rule it unreasonable. This is called stacking the deck in their lawyers' favor.


10. Section 10. "You agree not to use or disclose to any third party for any reason whatsoever any material provided to you by us or any information regarding Martha Stewart, B+S and/or the Magazine which you may have learned (directly or indirectly) in the course of the Project unless you are required to use or disclose such material and/or information in accordance with this agreement or by law, or B+S consents in writing in advance to such use or disclosure." In other words, beyond not giving away information on what the magazine is planning, you can't talk to other writers about what you've been able to negotiation, what the pay is, or what the contract terms are.


11. Section 11. Even more on being an independently self-employed person.


12. Section 12. This is the warranties section. Take a look at the exact wording, because it's even more extensive than many: "You represent and warrant that (i) you have the right to enter into and perform your obligations pursuant to this agreement, and to grant the rights herein granted to B+S; (ii) the Work will be original to you; (iii) neither the Work, nor B+S’s exercise of any of the rights in the Work granted hereunder, shall infringe, violate or otherwise conflict with the rights of any third party; and (iv) you shall not challenge, dispute or otherwise act in conflict with B+S’s exclusive ownership of the Work, any rights therein and/or B+S’s rights in and to any name, trademarks, trade names, logos and/or other tangible or intangible property of B+S." First, you say that you can enter the agreement and that you own the rights they want. Fair enough. Next, your work must be original. Fine. However, item iii gets to be a problem. Not only do you have to promise that what you wrote will not "infringe, violate or otherwise conflict with the rights of any third party" ("knowingly" would be good, but at least it's interpreted under New York law), but that the publisher's exercise of those rights won't cause a problem. But that's a problem right there. Exercise of rights includes editing, adding material, rewriting, pairing the article with art, and otherwise do things that could, among other effects, cause someone to want to sue. It's not just what someone publishes, but the context that might lead the audience to interpret the content in a given way. And then, in iv, you agree that you won't legally challenge their rights. Now, I don't see why a writer would do that, or under what circumstances, but I get leery of any contract that wants me to forgo legal options for any possible situation in the future.


13. Section 13. Now comes the indemnication - not just for B+S, but anyone it's doing business with - for any breach or alleged breach of the contract. That breach or alleged breach (which should be enough to kill the deal on its own) can be due either to the piece itself, but the use of the rights the magazine makes. And it's not for reasonable costs and expenses, but all costs, including all attorneys' fees and court fees, "without limitation." That's a non-start clause, from my view.


14. Section 14. Once again, if they hurt you legally, you are agreeing that all you can ask for is money damages and no equitable relief. But would a court ordering them to pay something immediately now be considered equitable relief, because it went to controlling behavior and not assignment monetary damages? I don't know.


15. Section 15. New York law is the basis for interpreting the contract, and that should be fine. But if you have a problem with them, including having to sue to get paid, you'd have to go to New York county in New York state to take action.


16. Section 16. This agreement is the entirety of your understanding. If an editor says, "Oh, don't worry about that," worrry about that. The editor has no power to tell you that part of the contract won't apply. Any change has to be in writing.

All in all, this is a contract I would pass on.

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.

Contract Review: ProMedia.travel

I had replied to a JournalismJobs.com posting in either late 2006 or early 2007. In December 2007, I finally heard back (which shows that you shouldn't write someone off just because they're not working on your time table). The publisher, ProMedia.travel, has web sites and wanted travel writing at about $1 a word. They invited me to pitch, but I said, "Let me see the contract first." Here's my review (remember, I'm no lawyer and this is no legal advice):

• In General The contract that must have been the basis for this seems to have been focused on corporate design work and not editorial writing. Also, someone made a couple of twists in the redrafting, I think, and unintentionally greatly expanded the scope. In addition, there were some important items missing altogether.


• Due Date The contract uses as a due date a number of days from the signing date, not a specified date. The former is pretty clear to anyone, but the latter could result in late assignments because someone simply miscalculated the number.


• Grant of Rights The contract technically says that only the publisher can use the piece in print or online ever, anywhere, because it uses the term exclusive. Some of the rights are not clear enough. For example, according to the wording, the company could publish a piece in print or "electronic media," but it's not clear that would include online use. They could not make it available in a third party database, because there is no provision for them to sublicense any rights. Because there is no provision to sublicense and no explicit provision for syndication rights, the company cannot syndicate. However, the writer can't either, because the company has exclusively tied up all print and electronic media rights.


• Reservation of Rights In the contract that formed the basis of this one, the creator reserved rights not transferred. But in this case, the client - the publisher - is reserving all rights, which means that now there's nothing the writer can do, even if there was something left open, like basing a book on a set of articles. The contract mentions having rights in "preliminary materials" as well, which could include notes and early drafts (even if completely different from the final one), keeping the writer from using this material in any other way. It's about the most extreme statement in this area that I've seen in any publishing contract. Some of the language also makes it sound, again, as though this were intended for a graphic designer. The company would be better off having separate contracts, because the rights and other issues can vary greatly from writing to photography to graphics.


• Revisions There should be a limit to the number of potential revisions, because as written, the contract allows the publisher to ask someone for revision after revision.


• Miscellany The contract allows for transmitting assignments, edits, and expense authorizations either in writing or orally. That's actually a problem, because then neither side has an audit trail and could have a legitimate disagreement. I'd suggest confirming everything in writing, if you were to write for them.

Think that publishers are trying to trap writers? Nope, sometimes they just don't realize how bad a document is. For example, here's what I heard back: "I'm surprised because I thought it was actually a very freelancer-friendly agreement, based almost entirely on the attached document provided to me at a Freelancer's Union seminar." They said they'd look at the contract and I mentioned that I'd give a bit of time to see if there was a revised version. Having heard nothing more, I thought I'd post this.

Contract Review: Natural Solutions Magazine (formerly Alternative Medicine)

A copy of this contract crossed my desk. Someone found the document confusing. No wonder - it is. Let's take a look (and remember, I'm not a lawyer and this isn't legal advice):

General Terms

• "The author warrants that this is an original work and that he/she has violated no laws and no person's rights in writing this article/producing this work and knows of no outstanding copyright restrictions on this work. " I’d want to replace "…he/she has violated no laws and no person’s rights…" with "…he/she has not knowingly violated any laws nor any person’s rights…" What if there is some obscure law in some country (as this contract doesn’t specify the governing language” that you might violate without even realizing it? For example, there are people who have sued for libel in the UK or Canada rather than in the US, because it’s a lot easier for the plaintiff there.


• "The publisher will pay the author within 45 days after acceptance of the final work (after all editing has been completed)." All editing? Some could be done right before the magazine is sent out to the printer, so it sounds like it’s effectively 45 days after publication.


• "All reimbursable costs will be paid after presentation of documentation by the author at the completion of his/her work (copying, document delivery, research services and any international calls must be pre-approved by Publisher)." As work would involve answering any questions from editors, that could mean after publication, and it doesn’t say how long they’ll take to pay. You want them to pay within your credit card grace period of undertaking the expenses.


• "Given time limitations for processing the article, the Publisher may exercise the option to edit and publish the article without review by the author. If the work needs extensive revision, the author has the right to request that his/her byline be removed." What if it doesn’t need “extensive revision,” but they make a few changes that make you look bad? You should have the absolute right to remove your name from the piece if you don’t get to agree to changes.


• "In the event that parts of the story need rewriting or require additional information, the author agrees to rewrite portions of the work to the satisfaction of the editor at no additional compensation." How about a reasonable limitation? Like one additional rewrite? And what if the changes are due to editors changing their minds on the angle or structure of the story after they’ve signed off on what you were going to do? You could have to underwrite their lack of firm decision or clarity.


• "Should the story be unacceptable and the editors deem it cannot be improved with a rewrite, the author will be paid a 'kill' fee of 15 percent of the agreed upon compensation, and the story will not be published." Push to have that mean that the story either did not cover what was originally agreed to or the submitted version was not prepared with typical professional quality. Otherwise, they could change their minds and then say, "Sorry, not acceptable." Why should you get hurt if the problem isn’t your fault?


• "The author will not re-sell said content or sell other content on the same topic using the same angle or sources for six months after agreed publication of said content." On the surface, that’s unreasonable. I could maybe see this if they limited it to directly competing publications, and shortened the period to 60 or maybe 90 days. This says you have to sit on the topic, no matter how timely, even if another outlet is not a competitor at all. And not use the same sources or slant? Too restrictive if it’s in a non-competing pub. But this is also a pretty blatant attempt to set up expectations in the writer that will never be fulfilled, as you'll see in a bit.


• "Given unforeseen circumstances, the final article may be held for publishing at a time or in a publication other than the one assigned. If so, the original due date does not change." That means final editing won’t get done until later, and so your pay drags on.

Assignment and Release of Rights

1. This clause seeks "editorial control with respect to content and suitability of this article for publication" and notes that the publisher has the last word on editorial. In other words, if they make a decision that is going to make you look bad or foolish, you have no recourse.


2. "I convey to InnerDoorway the exclusive license to publish the article, worldwide, in print media (including, but not limited to, InnerDoorway’s publication, Alternative Medicine), in any electronic media authorized by InnerDoorway, and in reprints published by InnerDoorway. The rights herein granted include the right to use my name, approved biography, credit line, likeness, and any portion of the article in connection with the publication, advertising, and promotion of the article; and to make such other promotional use of the article as InnerDoorway deems necessary." Welcome to the door opening to the land of confusion. They have an exclusive license to print, electronic media, and reprints. That would mean you can’t do a thing with the piece after. The rights in 2 would have to be time limited for you to do anything else with the article. Now take a look at 3.


3. "I agree to wait at least six months after the original publication of the article before allowing any other publication to reprint the article. I shall make best efforts to include the credit line, “Originally appeared in [issue month and year] of Alternative Medicine,” in all reprints not published by InnerDoorway pursuant to this Agreement. I shall not grant rights of any kind to the article to any competitor or imitator of InnerDoorway." Oh, what hooey, as well as hot air. If you've sold exclusive rights, that means you have no rights left to exploit. This makes you think that you keep control of your work, but you don't - and even if you did, they'd want credit for having written a check to you in the first place.


4. "The rights hereby purchased comprise all the rights in the Content of every kind, nature and description, including, without limitation: (a) the actual document; (b) the right to secure copyright and/or patent protection and registration thereon anywhere throughout the world, in our name or otherwise; (c) any and all publication rights therein, in whatever form; (d) the right to use, license, sell or otherwise dispose thereof in any manner and for any purpose InnerDoorway sees fit; and (e) any and all related rights therein." Just when you thought the rights issues were bad, now they're worse. They want the power to register copyright in their name and have absolutely all rights. Sounds like they’re trying to con writers into thinking that it's only a First North American Serial Rights contract when it's as grabby as you can get without asking for work made for hire. But the approach comes across as incredibly sneaky.


5. "In order to induce InnerDoorway to make this purchase, and in consideration thereof, you hereby represent and warrant that: (a) you are the sole creator of the Content; (b) the Content is original and has not heretofore been published; (c) the Content does not infringe upon any statutory copyright, common law right, propriety right, or any other right whatsoever and contain no matter contrary to law; (d) you are the sole owner of the Content and all rights herein conveyed to InnerDoorway; (e) the Content and such rights are in all respects free and clear, and that you have not heretofore made any commitment for the use of the Content; (f) you have obtained all necessary permits and authorizations and complied with all laws and regulations in connection with creating the Content; and (g) you will hold InnerDoorway harmless from any and all claims arising therefrom." If the rights stuff was agreeable (and it seems ridiculous), then I’d modify (c) so that it “does not knowingly infringe,” because there is no limitation of under which laws this can be interpreted, and it's overly broad, as well. And harmless from any and all claims rising therefrom … what? That you have permissions? Or that you promise everything here? What if they add something that is a problem and you get sued? Might you be holding them harmless, meaning that you’re saying you cannot recover damages that they’ve covered? Maybe yes, maybe no, but you can bet that if the situation came up, their lawyers would try to argue that point, and you’d have to go to court, which would mean more money just to get to a point where you might or might not be able to sue to recover what you lost.


6. And just in case you had any other ideas: "InnerDoorway shall have the absolute right and discretion with respect to the Content, without any further compensation to you or without any authorization by you, including, without limitation, the following: (a) to use or not to use the Content or any portion thereof and (b) to use the Content or any portion thereof in conjunction with other material."


7. A reference to the Visual Artists Rights Act of 1990 has to do with visual work and the allowances the law made for an effective set of moral rights - the right to control your work, to get credit, and not to have your professional reputation damaged from the use or misuse of what you created. It doesn't apply to writers, but it does show the publisher's desire to have others sign their rights away.

Overall, an unfavorable contract, I think.

Contract Review: Better Health & Living

Another contract came my way, so here's a review. As always, I'm not a lawyer and this isn't legal advice:

• Section 2 "Publisher retains the right to make any and all revisions and/or modifications as deemed necessary." However, will you ever get to see what appears with your name before it’s in print? You should have the right to see edits ahead of time and, if you find them egregiously bad, take your name off the piece.


• Section 3 Pay comes within 30 days of invoice, but also "after acceptance of the Work by Publisher in a publishable form satisfactory to Publisher (at Publisher’s sole discretion)." The publisher can decide that something isn’t suitable, even if you deliver what it asked for. There is also no time line for providing official acceptance.


• Section 4 "Publisher agrees to reimburse the Author for all pre-approved and documented expenses within fifteen (15) days of submission of the receipts to and the acceptance thereof by Publisher." This has become a personal irritant to me, because if you're getting reimbursed, then it shows up as income, and you need to deduct the expenses on your own taxes so you don't have to pay taxes on the expense reimbursement. That means you need the receipts. If they're willing to take duplicates of the receipts, that would be fine, but some publishers won't, and there's nothing about what is acceptable in this contract.


• Section 5 Although the section starts off about the copyright being the property of the writer, be wary, because you're being set up. In paragraph d, "The Work contains nothing libelous or otherwise unlawful, does not infringe any rights of other parties and does not contain any recipe, formula or instruction which if followed accurately would cause injury or damage." How about knowingly on at least the libel or rights infringement? Because ultimately it’s a court that decides whether something is or is not, not the writer. Graph f states, "All statements of fact in the Work are true and based upon deliberative research and all instruction and advice in the Work is harmless and not negligent or defective." Add "to the best of the writer’s knowledge," because you could make a legitimate mistake, but there are no provisions for honest mistakes here. Graph h provides the real zinger: "The Author agrees that all Work performed for and accepted by the Publisher has been written exclusively for the Publisher for distribution and circulation into various markets at the sole discretion and timing of the Publisher. Author further agrees not to reproduce or disseminate the Work in any fashion to any third party without the express written permission of the Publisher..." In other words, and the second sentence notes this, they want control even if they don’t own copyright. And unless it’s all rights, how can it be written “exclusively” for the publisher? It doesn't matter, because this is saying that you don't intend to sell it to anyone else, and that you'd need to get the written permission of this publisher to do so. It's an end run around using either "all rights" or "work made for hire" wording that might alert you.


• Section 6 I find the sentence "The Author should not consider the publication of their Work as certification by the Publisher" to be confusing. Does this refer to copyright registration? If not, then what?


• Section 7 "Although Author may be permitted to reuse all or portions of their Work under this Agreement in other works, this does not extend to granting third- party requests for reprinting, republishing or other types of commercial reuse. All such third-party requests received by Author must be forwarded to and handled by the Publisher, at the Publisher’s sole discretion." This whole thing reads as something sneaky to me. the author may be permitted, but doesn't have to be permitted. And this doesn't extend to third party requests for republishing, reprinting, or "other types of commercial reuse"? So effectively toss out even the "may," because if it's commercial use, you can't have it.


• Section 8 "Should either party to this Agreement be required to engage an attorney to enforce any provision herein, or bring an action for the breach hereof, then in addition to any damages or other relief recovered or obtained, the prevailing party shall also be entitled to recover reasonable attorney’s fees." That should not be granted ahead of time, but left to a court to decide.


• Section 9 "This Agreement shall be construed according to the laws of the State of Delaware, without regard to the choice of law provisions of that State, and all actions, regardless of the form or nature of such, to enforce this Agreement or for the breach of same shall be brought within one (1) year from the occurrence of the grounds for such action in Delaware." First, this is a problem because you're agreeing that you'll go to Delaware to bring an action, at least the way it reads to me. Second, someone can think there's a material breach of the contract, not say a thing, and the suddenly take legal action up to a year later? How about a chance to fix the breach? How about just getting rid of time periods?

Given the rights obfuscation and some of the other issues, unless this publication is paying a whole lot, I think a writer would be better with a whole different contract.

Contract Review: BobVila.com

A copy of the "content provider's agreement" for BobVila.com hit my inbox, and here is my take on it (please remember that I'm not a lawyer and that this isn't legal advice):

• 1. - Definitions Pay attention here, as these definitions will reappear, and you'll need to know what you're being asked to agree to.


• 3. - Fee The assignment documents state fees, but notice that they're supposed to be paid within 30 days of acceptance of a work. Nothing says how long the site has to accept some content or what constitutes acceptance - a note from the editor, or is there a committee process?


• 4 - Delivery of the Work; Editing Process, (b) The web site owner "has the right to delay display or publication of the Work, or to choose not to display or publish the Work, at its sole discretion." That means for any reason, including the phase of the moon. If they don't use it, you get a kill fee of 20 percent, even if you did as you were asked.


• 4- Delivery of the Work; Editing Process, (d) They can look over what you send in and ask for deletions or changes because they think someone could sue them, but they have no responsibility for problems, even if they don't see anything wrong any more than you do.


• 4 - Delivery of the Work; Editing Process, (e) "If requested by Web Site Owner, Content Provider agrees to give Web Site Owner access to the Work Files and/or to make copies of all or part of the Work Files at the expense of Web Site Owner, within a reasonable time period after receiving the request" What if you have to hand over the notes and they add something? Now that material may be no longer available for other work you do.


• 5 - Representations and Warranties, (g) "[T]he Work does not and will not violate any law or regulation, including without limitation, the laws and regulations governing defamation, libel, pornography, and or obscenity..." This is very sticky, as it explicitly says any law or regulation and doesn’t narrow things down to one set that you must be concerned with. Even though there is a later provision for the contract to be construed under Massachusetts law, I don't know if that would offer any protection.


• 5 - Representations and Warranties, (h) "...any computer files or other medium in which it is delivered to Web Site Owner, do not contain any viruses or other computer programming defects which are intended to or are likely to result in damage to the Web Site or another web site, computer system, or data of Web Site Owner or any other person or entity." That should be modified with the word "knowing". What if there’s a new virus that your scanner doesn’t notice?


• 6 - Intellectual Property and Ownership of Work What you do is either work made for hire or, if not allowed under the law, you transfer all rights and interests to the intellectual property (including copyright) to them, and you can't do anything with the material again.


• 7 - Confidentiality and Non-Disclosure You can't talk about the contract, or even negations you've had with the site, which means no telling others about rates and what things can be negotiated successfully. The language reads as so extreme that it's not even clear you could tell anyone that you were working on a story for the site.


• 8 - Indemnification by Content Provider "Upon written notice from Web Site Owner to Content Provider, Content Provider shall defend, indemnify, and hold harmless Web Site Owner..." but there's no time frame in which this needs to happen. Also, they want indemnification not just for a breach, but an alleged breach (someone claims you did it) of the warranties - or anything else to do with the contract. For example, if they want to argue that you didn’t deliver what they requested, it might be that they could argue it was a material breach and have you fund the legal case against you.


• 10 - Governing Law; Jurisdiction If you have a legal beef with them, you have to take care of it in Massachusetts.

There's enough here screaming "deal killer" that, personally, I'd pass on taking an assignment without some significant changes.

Contract Review: Leverage Media

Now, remember that I'm not a lawyer and that nothing I write here is legal advice. However, I have done a lot of custom publishing work and, as a result (as well as reviewing contracts for other writers), have seen many custom publishing contracts. So when I say that a given custom publishing contract is probably the single worst I've seen in the field, it's saying a lot. But that's the case for the Leverage Media that someone recently forwarded to me:

• 1b - when the contract defines the writer's contributions as specifically including, but not limited to, " all documentation or information resulting, in whole or in part, from services that Contractor provides under this Agreement, including but not limited to all drafts and computer-readable materials prepared for LM, LM’s Clients or LM’s Potential Clients," you know you're in trouble. Look again - all information. I suspect your contribution would include all notes, interviews, and other research, which is a whole lot to give away at rates that, from what I hear, aren't that much higher than $1 a word.


• 1d - The contract specifies "this Agreement shall not be deemed to be for a fixed term of any duration, and is terminable at will." Does that mean that the publisher (or the writer, for that matter) could call it quits in the middle of a project without any provisions for the time book that is no longer being used? Certainly sounds plausible.


• 1e - This clause says that time is of the essence, which means if you're late, it's a major breach of the contract and might let the other party out. Also, "any failure by Contractor to complete such tasks in a professional manner by such date shall be deemed a material breach of this agreement." Oops - another open manhole cover. And all Leverage would have to do is pay any out-of-pocket expenses, previously allowed in writing, that you've undertaken.


• 1f - Here's a real winner: "(f) Except as set forth above in Paragraph 1(d), either party, upon giving 5 days written notice of any material breach of this Agreement (including, without limitation, Contractor’s failure to provide services), during which 5-day period such breach remains uncured, may terminate this Agreement." But 1d says that either side can terminate the contract at will, so this doesn't do a whole lot.


• 1g - Sound the fire alarm. You don't get paid unless and until the ultimate client pays Leverage. So, no matter how well you do, if they can't keep the relationship going, or if they screw up in some way, they expect you to write off the work you just did. That seems like a sucker clause to me, 'cause only a sucker would sign it.


• 2 - They want to own all information, whether marked confidential or not, and any work you come up with. So, if they don't get paid, does that mean they still own what you did?


• 3 - Solidifying the grab, what you write is under a WMFH agreement, and if something isn't a candidate for WMFH treatment under the law, you hand over copyright. And if they don't pay because their client didn't pay them? Well, they told you that in the contract. IT might be that a court would toss out the agreement, saying that, as there was no payment, there could be no business transaction, which must be the basis of a contract, but you'd have to spend money on a lawyer for that.


• 4 - The warranties are pretty broad, and the writer will not "violate any copyright, trademark or service mark, common law or any other right, or defame or harm the individual or business reputation, of any person, corporation, or other entity." At least a later clause says that the contract must be construed under New York law, so perhaps you aren't providing a warranty under the laws of other countries, as well.


• 5 - Now comes the confidentiality and non-disclosure statement. Nothing necessarily so over-reaching here, but, good golly, all this verbiage and legal consideration for a crummy article?


• 6 - Many companies that subcontract writers, etc., have provisions for not allowing a subcontractor to poach its clients. That's fair enough. However, this contract is more broadly worded. For example, you are supposed to agree not attempt to get business, whether directly or through some other company, that is similar in nature to what Leverage does. There's a two year time limit on this - about double what I've seen elsewhere, and clauses like this are hardly the rule. Plus, not only does it apply to current clients and even prospective clients (and just how big is that list, anyway?), but even some number of prior clients that, apparently, no longer do business with the firm. This is a list that includes a number of law firms and even some magazine publishers like Chief Executive and Crain's New York Business. Jeez. And if you do slip, even accidentally, they want you to agree to turn over 150 percent of the money you made from the client!


• 7 - I never trust contracts that call for automatic injunctive relief on the part of one party but not the other, because it's unreasonable to expect that someone can demand an injunction without having to provide a pretty high bar of reason for so asking. This company's agreement is one such.


• 9 - Not only do they want indemnification for any breach of warranties, representations, and so on, but for any alleged breach. "Oh, sorry, we claim that you breached the contract, so we're going to get an injunction and, please, pay our legal bills for doing so."


• 12 - They like New York laws, which is fine, and want you to take up any legal problem in Westchester County, which is not.

I may have missed something or other in the agreement, but with one like this, it would hardly seem to matter.

Contract Review: The New York Times

A current NYT contract crossed my desk the other day (not for an assignment), and as it had been a bit since I've seen one, I thought I'd review it. As usual, I'm not a lawyer, and this is not legal advice. The numbers of the points refer to the numbered graphs in the contract:

1. This is a pay on publication contract, so if an editor holds the story, the paper can hold your pay. It does pay "reasonable and necessary expenses" so long as they are pre-approved, which seems reasonable enough unless you're on a breaking story and cannot get pre-approval. You have 60 days from incurring the expenses to "submit documentation acceptable to The Times." It's not as bad as some contracts I've seen that offer a 30 day window, and I can understand the time limit - if you wait months, it starts getting pretty hard to match up approved expenses to assignments.


2. This is the deal-killer, so far as I'm concerned - not only does the paper own the copyright, so you can't do anything with the story without permission, but they also get a wide range of non-exclusive rights to anything you've ever written for them before without an agreement. Interestingly, it does not seem to cover any story that was done under a written agreement, even if the agreement was far more favorable to you. If they syndicate the article, you get 50% of net receipts, after "syndication expenses" (whatever, and how much ever, those are). But putting the article on the NYT News Service doesn't count. Also, there is no provision for being able to see if the paper did, indeed, syndicate your work in any other manner, so you have to trust that they'll tell you.


3. You have to "cooperate in the normal editing process." If they don't publish the article for whatever reason, "you will be paid a kill fee in an amount to be agreed upon by you and the assigning editor." In other words, there is no minimum amount they are contractually obligated to pay. You can even have done exactly what they wanted and they are not obligated to pay you the full amount. It may be that editors are reasonable there - or not. But you are dependent on their generosity.


4. They can use your name, likeness, and by-line, not only to promote the piece, but to promote the paper. Realistically, if you have a name so big that its use could really help sell the paper, then I'd think there would be a chance that you could get a significantly different contract. But that's just a guess, and there are probably few people in the country who would fall into this category.


5. There are some broad warranties. An interesting one is that you will not "plagiarize another's work." Now, I'm generally OK with publishers wanting an absolute promise of not infringing copyright. But plagiarism is a far more slippery term. Under whose definition? At what point could you commit plagiary but not copyright infringement? That's a bit of a head scratcher, and would be a clause that would make me uncomfortable. You also promise not to violate anyone's rights, which is broad, but as we'll see later, is probably construed under New York state law. You also agree not to include "libelous or otherwise unlawful or misleading material." Misleading? OK, what's the legal definition of misleading? Nothing easy to state or understand? That means, sign this and you leave a lot of room for interpretation as to whether you might have breached the contract or not. Although you have to "cooperate fully" in the case of a third party suit, you aren't required to provide indemnification, which is good.


6. You have to review the paper's ethical journalism policies and say that you will comply with them. That means the contract is effectively making them part of the agreement, and you'd better read carefully, as there are many ways you could unknowingly go wrong. For example, you cannot accept "free transportation." Could a ride in a source's car count? Who knows? Maybe that's covered in their document, so have fun reading - and being careful. Also, you cannot accept "commissions/assignments from current or potential news sources." So, even if you aren't using someone as a source, if they could be a source, you can't accept work from that person or entity. Extending that to potential makes it enormously open-ended. And there is something snuck in: "To the extent the Article is syndicated for use in an advertisement or promotion, there will be a maximum Syndication Fee." So nice of them to drop it in here instead of where you discuss such issues higher up in the contract. What is the maximum? Apparently they can change it at will. And you cannot mention any association with the paper in speaking engagements or public appearance.


7. For two weeks, you cannot allow any article you've write on "similar subject matter" to go into print if it's going into something the Times considers competitive - which includes any newspaper, magazine, or any other publication, no matter what the form of the media (think web) "whose editorial focus is either New York City or general interest news and information." In other words, unless the paper gives you permission, forget doing other versions of the story if it's time sensitive and you have to get it into print quickly.


8. You agree that you aren't an employee - it's pretty standard looking.


9. This supersedes any other agreement you might have had with the paper.


10. The contract is construed under New York state law, which is good for issues like determining libel. But if you have any legal beef with the NYT over this story, you'd have to take it to New York county to get satisfaction. However, as my publishing lawyer has pointed out to me, the courts there understand the issues and if you're owed money, the awards can be larger than elsewhere.

Contract Review: Wired

Someone sent a copy of a current Wired contract. It is not, by any means, the worst contract I've seen - the writer even retains most rights - but there are some sticky points. Please remember that I'm not a lawyer and that this isn't legal advice:

• They can reject a piece and pay a 25 percent kill fee. Unfortunately, there is no cure period and no set amount of time in which they have to make a decision. So they can keep you dangling and then say, "We've decided to kill it." They don't have to give you an opportunity to learn what they think is wrong and to see if you can fix it.


• You have to get expenses approved, and because of the phrasing, it looks as though they could make you ask for each expense. You have only a month to get the expense info into them with receipts - though you need copies of them yourself for your own tax records. If you get them in after a month, they could technically refuse to reimburse you.


• Regarding rights, they have the piece for 90 days before you can do anything else with it, and that's from the on-sale date of when it's first published. It might be worth negotiating for an absolute date as well so they don't screw you around (at least next time).


• Even if they publish on the web first, they keep the exclusivity until it hits print. So what happens if they put it on the web and then decide to not put it into print? You effectively don't get to use it again.


• They can reuse the piece without paying you and can authorize others to reprint the article. They distinguish between reprints (generally a standalone version) and standalone versions, which makes me think they're looking for the right to syndicate the piece, but they mention that later, so it's unclear exactly what distinction they're making. Anything they have the ability to do they can do , and they can do that in the three months of exclusivity - or between that period and when it first appears on the web.


• Regarding movies and television use, they have the right to allow a movie or television show to use it within the show. So, someone might pick up and mention a mention of your article, or an an editor could be interviewed about the article. I don't read this as them having the right to make a movie or television program out of an article, which is good.


• They get syndication rights, both direct and they can authorize others to do so. You get 40% of "net", and that means - who knows? What expenses come out before you get a share? Quite a bit could. Generally 50% of gross is the traditionally fair split. Having warranties apply to syndication could be a problem - what if it's in another country and you now have to deal with a suit under laws and standards you don't know or understand?


• If you resell the piece, you have to require the other publisher to contractually include credit to them, which is ridiculous. That will cut down on your ability to sell, which is probalby part of what they're trying to do. And if you could get the permission, why should they get advertising? Try to get this stricken, or at least modified by a more reasonable statement that you'll try to get this. But you shoudln't have to forgo your revenue to suit their marketing purposes.


• The editing clause sounds harmless enough, but they can ask you to supply any and all research materials. Who's paying for photocopying and shipping anything that you can't email? Best to have that sorted out if it looks like you'll be using lots of paper-based sources.


• The sixth clause lets them put the article in the databases, and some number of the databases then actually sell individual copies (think of the article sales that Amazon does).


• If they do a foreign language version of the article in the US, that ties up the same language rights in another country with the same language. In other words, if there is a Spanish-language version in the US, that pretty much cuts out Spanish-language publications around the world. That seems unfair if the magazine isn't being sold in those countries.


• Technically, the non-disclosure clause could prevent you from mentioning the details of the contract to anyone. Personally, I find that a bit sticky. Writers should be able to talk to each other about assignments and clients. The part about limiting what you tell sources, et. al. about the details of an assignment seems completely reasonable, so perhaps they should word the section to do that and not include the other.


• The non-compete ends up being sticky. You cannot do any additional sales for 90 days after the on-sale date of the print publication. What if they delay publication? It could keep you from writing about the same topic with a different focus for a different and even non-competing audience. That's why you need a definite time-out on such things.


• You should limit the warranties by adding "knowingly." Any personal or property rights without restriction is very broad (I could see copyright infringement). And then to say that it won't give rise to *any* claim by *any* third party? That's ridiculously broad. On the plus side, there isn't an indemnification clause.


• There is a termination with 30 days notice clause for either side. That means if you have the assignment and a few months to do it, they can kill it and not owe you anything. It also means you can walk away from it with notice, as well.


• The contract provides for construing the contract under NY law, which is actually good. You could argue that any claim of infringement of someone's rights would have to take place under NY law, rather than some other country. But if you have any legal problem with them, you actually have to go to court in NY to take care of it, which isn't so good if you don't live in NYC.

Contract Review: CreditCards.com

Here's my review of the CreditCards.com publishing contract, forwarded by a reader who wanted my view. As always, please remember that I'm not a lawyer and this is not legal advice:

• A and B. Although not a draw-back, per se, realize that this will govern work going forward. If you think to yourself, "Maybe I can get this changed in the future," you leave the door open for them to say, "We're already set with a contract, so that should do."


• 1. You are granting exclusive license to publish the article on their own web site or in their own publications or in any other. You cannot resell the work. They can license others to use the material, as well. Also, you're selling the right to claim copyright, and it's work made for hire. You can't do anything with any of the articles you write for them in the future.


• 2. Payment is in US dollars within 30 days of their acceptance - and that's on its final edit, whatever that means and whenever that happens. More realistically, they have 30 days to accept and then 30 days to pay, so that's up to two months after submission.


• 4c. You guarantee that you won't infringe on anyone's rights under Texas law. I'd think that would have to include federal law for copyright to make any sense. But you'd better be aware of what under Texas law might be an infringement of rights, or add that it has to be a knowing infringement.


• 4e. Again, you have to agree that you won't libel someone, infringe rights to privacy or publicity, harmful enough to expose the publisher to a suit, or otherwise illegal. Again, better know these specifics under Texas law.


• 4g. Factual statements should be true within the best effort of the writer to know. Your research might seriously suggest that something is right when it actually isn't. Get it wrong, and you're breaching the agreement. Generally, I like indemnification to kick in only with an actual breach of the warranties, and not for just any "violation," which is what they tack on.


• 8. This is a crock. You are agreeing that either the negotiations or much of the work happens in Texas, which simply may not be true. You're agreeing that any legal dispute gets handled in Texas, which puts you at a disadvantage. What if you have to sue to get money?


• 11. The contract specifies a kill fee of 25%, but doesn't say when they publisher can opt to do that, other than when rejected. But it should be rejected for not meeting professional standards or the details of the assignment. They shouldn’t have the flexibility to do that if you've actually performed under the contract.

As always, I welcome readers to post about their experiences, to ask questions, or to submit their own contracts. The only requirement is to be a subscriber to this blog and to recognize that I will post my review (without any information to identify you).

Contract Review: CurtCo Robb Media

An investigative negotiator - otherwise known as a reader of this blog who sent something for me to review - forwarded a copy of the CurtCo Robb Media Contributor Agreement. I'm posting a review for anyone who might find it interesting. Please remember that I'm not a lawyer and this isn't legal advice.

We start with the first paragraph. Subsequent assignments all have to use this document for the indefinite future. If you can't get them to budge on anything - and, rumor has it, you can't - then these will be the terms, period.

Next, the "work must be acceptable in form and content as submitted or revised." That leaves them room to refuse the work on virtually any grounds and doesn't put you in a position of arguing for full pay because you've submitted a professionally written article on the subject they mentioned.

Now for a nastier part: "If the work is acceptable, and if the work is published [emphasis mine] in a CurtCo Robb Media publication or a publication prepared for a CurtCo Robb Media customer," then you get paid the fee in Schedule A - the document that says what the assignment is. You must prior approval of any expenses and document them.

If the work isn't accepted for publication - which could mean they just decide not to use it - the writer gets "a 'kill fee' not to exceed 25%" of the original fee. Notice the language "not to exceed." That clause isn't even guaranteeing 25%.

Next, "However the 'kill fee' will only be paid if it is demonstrable that the Contributor exerted best efforts to produce the work. Nothing in this agreement obligates CurtCo Robb Media to use the work." How would you show "best efforts" in trying to produce an article? Log your time? provide all notes, which means you've handed over valuable material to people who don't seem inclined to pay for your full effort?

The publisher wants work made for hire, and if that doesn't apply (not all does, under the copyright statutes), then you assign copyright and all other rights and interests in the article. The company and its partners can do anything they want, and you don't get any extra money, even if they could turn the article into a movie deal.

They can use your name and biography "in connection with the use and exploitation of the work," but they don't guarantee you a byline.

Then you have the warranties, that the article "contains no defamatory, libelous or unlawful matter, and the exploitation of the work by CurtCo Robb Media or its affiliates, licensees, assignees, successors and partners shall not violate or infringe upon the copyright rights, rights of privacy and/or publicity, or any other statutory, common law or other rights of any party." From what I've heard, it sounds as though they won't let you add "knowingly," although a later clause does say that it must be construed under California law, so it's not like you're saying that you provide these warranties under all laws in the world, as many contracts effectively have you do.

The indemnification covers "CurtCo Robb Media and its affiliates, licensees, assignees, successors and partners" and is for "the breach or claimed breach of the foregoing representations and warranties." You aren't just indemnifying for an actual breach of the warranties, but for any claim that you've breached the warranties. That's so wide open that you are a duck sitting on a football field with hunters filling the stands.

"This Agreement contains the entire understanding and agreement between Contributor and CurtCo Robb Media, supersedes and replaces all prior agreements and understandings (oral and written) and cannot be modified or amended except by a written agreement signed by Contributor and CurtCo Robb Media. " If an editor tells you anything contrary to what the contract says, either before or after you sign it, those assurances mean nothing. This document is the sole set of rules.

From what I've heard, the company's rates aren't all that high on top of it, so you're having to give away a lot to get little. Better to get yourself to other clients.

Contract Review: Meredith SIPS

Meredith SIPS is the special interest arm of Meredith. I received a contract from a writer about to do something for them. It's a short document - one page - and it does require signing over copyright. (My source says that SIPS won't budge on any contract terms, but pays well and quickly, even though the contract doesn't say when you get paid - whether on acceptance or publication.)

Much of the rest of the contract is a warranty clause – you won’t do this or that – and it’s limited to things you knowingly do, which is a good addition. There is also a hold harmless clause, which, to my understanding, means that you won’t seek damages from them under a given circumstance. In this case, you are the one providing the warranty that the work won’t do any of these things that would be a problem. Under a hold harmless condition, you relieve them of liability, which is different from an indemnification, in which case you’re also agreeing to foot their bill. It might be good if possible to change the phrase “the undersigned will hold MEREDITH harmless for breach of this warranty” to “the undersigned will hold MEREDITH harmless for undersigned’s breach of this warranty” so there couldn't be confusion. But if you can live with losing copyright on the piece, I think that change would pretty much do it.

Contract Review: Creating Keepsakes

I received a request at one point to review the contract from Creating Keepsakes. The PDF version can be found on the publisher's own site. Please remember that I'm not a lawyer, and that this isn't legal advice. Here's my take:

• Opening Paragraph The wording here should put a writer on alert. First, the agreement is for "any article or articles created in the past or to be created for or on behalf of Magazine in the future." So it is retroactive, and if you had a different arrangement in the past with the publisher, that is out the window. Also, if you got a modification on a future article, you might find that this wording still could hold legal sway.
• Section 2 - Editing There is something odd here. The magazine can keep reusing an article in any way it wants and can adapt it to any medium, with no additional compensation. So the publisher could create a book made up of projects featured in the magazine and pocket all the money. The curious thing is the phrase "The Author agrees to make such changes in the Works as Magazine may from time to time reasonably request prior to publication." If I'm reading this correctly, not only would the writer have to provide edits for the first running, but could technically be required to re-edit the article for additional uses in the future, again without any further payment.
• Section 3 - Consideration/Expenses It's a flat fee payable on acceptance - although the contract doesn't describe what that means to the publisher. This is often a snake-pit of an issue. I've seen magazines define acceptance as the final sign-off before the magazine goes to press - or, effectively, on publication. There is no mention about how soon after "acceptance" the writer should expect payment. Also, the magazine can decide not to publish the article, which appears to be separate from not accepting the article. In that case, it can reduce payment to 25 percent of the original fee. If you've already been paid, then I think you could be liable for sending back the extra 75 percent. Also, if an article is accepted, on principle the publisher should pay the full fee. The writer has obviously delivered what was agreed upon. If the publisher made a mistake in the commission, or changes its mind, the writer shouldn't be the one paying for the reconsideration.
• Rights in the Work Section The publisher gets a one year exclusive. Furthermore, the publisher can syndicate the work - sell it to other publishers. Between that and the one year exclusive, you can kiss a lot of the resale possibilities goodbye. The publisher also gets unlimited use in its own venues, and even gets extensive database, Internet, and electronic publishing rights.
• Author's Obligations Clause a is overly broad. Libel and obscenity have geographic definitions, so this would seem to leave the writer open. Given a later clause about interpretation under New York law, my point here might be moot, because I suspect the definitions would have to be under that state's definitions. The writer has to "fully cooperate" regarding "requested rewrites and revisions," which means there's no limitation on how often you can be asked to change things. Not only can the writer's name and likeness be used to promote the article, but to promote the magazine. So, if you made it big, they could keep using your name, in theory.
• Miscelaneous The sentence "Any claim or litigation arising out of this Agreement or its performance may be maintained only in courts physically located in New York County, New York, and Author and Magazine hereby consent to the personal jurisdiction of such courts" could be a problem. If you find that the publisher doesn't pay you, you'd have to go to courts in New York County to take action, not sue from your home territory. Now, as my publishing lawyer, who is in New York (I'm not) has explained to me, this isn't necessarily a big problem. New York courts understand publishing issues, and when they award damages, they tend to be large. But you'd probably have to appear at least once or twice, which adds travel costs. Generally companies add such clauses to make it tougher on the other party to take legal action.

Personal Jurisdiction Term in Contracts

Although I'm not quite as available to do contract reviews as I was when on the ASJA Contracts Committee, I still do a few. A recent one presented something I had never before seen: personal jurisdiction.

I just looked up the phrase "personal jurisdiction" on Lectlaw.com (a free legal dictionary). Here's what it says:

If the court is being asked to determine any defendant's rights or obligations, it must have the power to make orders concerning the individual defendant. This is called personal jurisdiction. Personal jurisdiction is also called "in personam jurisdiction."

For a court to have personal jurisdiction over a defendant, the defendant must have been personally served (or have accepted service of the court papers) and the defendant must have at least some contacts with the state in which the court is located. No set number qualifies as the minimum; each situation must be analyzed case by case. If the defendant lives out of state, the court must look at the defendant's contacts with the state. Going into a state regularly to conduct business is usually sufficient for the court to obtain jurisdiction; sending child support payments to a state, without actually visiting the state, however, is not.

That explains why a publisher might use the phrase: if both parties agree to personal jurisdiction, it makes it difficult for you to take legal action if and when necessary.

First, you have to pay to have the publisher personally served if you’re suing them for anything, like not getting paid. Next, the publisher will argue that it doesn't go into your home state so that you’d have to go to its state to seek your money. This is far more expensive than suing in your own backyard (which is potentially expensive for the publisher). Usually when a company wants to try for this sort of restriction, it asks for you to agree to legal jurisdiction on its home grounds. (The contract may use the word jurisdiction or might use something that is equivalent, like agreeing that any legal disputes will take place in a specific city, county, or state.)

Using personal jurisdiction is the most backhanded way I’ve seen this pursued. My personal take is that if I think a publisher is trying to sneak one past me, I also assume it will try to sneak other things by, and I walk away and seek better business partners.

Contract Review: CanWest

Someone jsut sent me the new contract from Canadian publisher and broadcaster CanWest. It's pretty much the same for writers and photographers, so both should be able to get something from this review. Please remember that I'm not a lawyer and that this isn't legal advice:

• CanWest seeks rights for all media, including "any and all third party print, broadcast, online, digital, and other media and the right to repurpose and/or resell in any media worldwide." Furthermore, payment schedules can be changed by the company without notice, so you could find yourself suddenly working for less money than you thought.


• The first numbered clause indicates that all rihts are exclusive, so the writer or photographer can never publish the material in any way, shape, or form (including self-promotion on a web site) without permission. The company can make any changes it wants and the writer or photographer has to waive moral rights - non-existent for US writers, but for Canadians as well as for US visual artists (photographers), it means that even if the company makes you look bad with the changes, you can't take any issue. They can sublicense any of the rights to anyone, which means that, combined with the moral rights waiver, you have no control over how and in what context your material is used. If a legislature grants additional rights in this area, you waive them as well.


• The second clause looks for a warranty, or promise, that the material "shall not infringe upon or violate the rights of any third party, whether personal or proprietary, including copyright." That means if a court in any part of the world (worldwide rights) decides that your piece has infringed any rights whatsoever, you've just breached the contract. Remember that laws vary widely, and you're promising that which you probably can't know. The contract also restricts the damages you can seek to "damages at law," and that a court cannot curtail the company's rights. I know less of Canadian law than US, but I think there is a distinction in terms of the remedies available if they cause you an injury of any sort. That means you could sue for money but not to force CanWest into any particular action, including an injunction from doing something or other and where money alone won't make up for it. If you use best efforts in trying to comply with this, the company will defend you in a defamation action - but no other type of action is mentioned, so for those you're on your own.


• In section three, aside for the "independent contractor" language you might expect, the contract further says that your services "are not now, and will not become, subject to any union or collective bargaining agreement... ." In other words, should someone organize a union for freelancers in Canada, this agreement is exempt.


• Section four provides for a freelancer to get 50 percent of the gross (that at least is a reasonable amount) for syndication sales. But the contract defines that as individual sales to third parties and not part of the Base Use (everything owned by the company or affiliated with it, including broadcast media and the Canada.com web site) or Electronic Use (all third party online and digital services). Since the base use includes the CanWest News Service, that may not leave a whole lot.

Sounds like the CanWest contract is a Can't Do for freelancers who value their business.

Review: Disney Internet Group Standard Contract

Some people have sent me the standard contract from the Walt Disney Internet Group - online division of the Mouse King. Although I can't reproduce the whole thing, as that would be copyright infringement, I can address some of the points that jumped out at me, (though please remember that I'm not a lawyer and that this doesn't pretend to be legal advice, and you get no guarantee, promise, or even word of sympathy from me if you use my advice):

• In the first section, you'll likely be asked to suggest a hed and dek, each specified in the number of words or characters, respectively. It doesn't make any real difference, but it's interesting to see how formatting can play a role in deliverables. In the same section, you are to provide "a suggested byline" and a biography. That certainly makes it sound as though you aren't guaranteed a byline, though that point doesn't seem to be directly addressed at all in the contract.


• Payment is "conditioned on timely delivery," in clause 2. That sounds like a variation on the "time is of the essence" clause. You are essentially guaranteeing on-time delivery, and acknowledging that if you don't, that might be grounds for them to cancel the assignment.


• Section 3 makes this the terms that will govern anything you write for WDIG for the next year. Only the company can terminate the agreement; you can't. That means there is no way for you to force the issue of reexamining the conditions by terminating the contract before taking another assignment.


• Section 5 says that this is work made for hire, so the Mighty Virtual Mouse becomes the legal author and you lose any right to do anything else with the piece. They can do whatever they want with it and you don't get another penny. You also grant the company the right to use your name and likeness "in connection with the Work or in connection with the Service." That means you could be helping to promote something other than your writing. That might seem far-fetched, but it's explicitly allowed by this wording. That gets more complicated with section 8, in which you say they can "edit, remove, modify, or alter, in whole or in part, any Work done persuant to this Agreement, in WDIG's sole and absolute discretion." So they can change anything and not ask you, possibly introducing errors or slants with which you disagree, and still attach your name to them.


• Section 6 has you guaranteeing that you won't infringe on any rights - but it already contains the word "knowingly." So it's actually a pretty reasonable formulation - bully for them.


• For some reason, section 9 reiterates the warranty of section 6 and adds additional ones. This is also the indemnification section and is unisgnable, in my opinion, at least, because of the "alleged breach" language. It's one thing to indemnify what you actually do, but quite another to indemnify for something that someone claims you did, even if you didn't. Also, this contract is unusual in that it covers not just the article, but "any acts done or words spoken by you, unless such words have been specifically supplied by us..." What if someone claims you said something? How the hell do you prove that you didn't? The good news is that apparently the company is willing to drop the problematic language, so be sure to ask. A good point is that the company indemnifies the writer for anything it adds to your writing, which saves you from having to argue that in a court, should the issue come up - a good addition that all publishers should embrace.

As always, if you come across an interesting contract, feel free to send a copy my way.

Authors Guild Warns of "Simon & Schuster Rights Grab"

I've had a number of writers pass on news of an Authors Guild warning about book publisher Simon & Schuster. You can see the original message, but here's the heart of it:

Until now, Simon & Schuster, like all other major trade publishers, has followed the traditional practice in which rights to a work revert to the author if the book falls out of print or if its sales are low.

The publisher is signaling that it will no longer include minimum sales requirements for a work to be considered in print. Simon & Schuster is apparently seeking nothing less than an exclusive grant of rights in perpetuity. Effectively, the publisher would co-own your copyright.

The new contract would allow Simon & Schuster to consider a book in print, and under its exclusive control, so long as it’s available in any form, including through its own in-house database -- even if no copies are available to be ordered by traditional bookstores.

This may be new for S&S, but this is hardly news. Book publishers have for some years have been redefining "out of print." If you have a recent book contract, look and see if there is wording to the effect that a book is in print so long as at least one version is available. Now see if you granted rights to create e-books or print-on-demand delivery or even more general "electronic" rights that a publisher can use to make a title capable of being searched through an online book seller (think Amazon) or search engine (like Google). If so, and if they've produced such a version, then you, my friend, are stuck - at least until 35 years go by and, under US copyright law, you rescind any previous license.

Reading and understanding contracts is a vital part of having a viable writing business. You can't just look for a checklist that someone provides you. No guidelines that have ever been produced yet can envision every single possible twist and turn that business models and, as a result, contracts will take. Don't rely on what other writers tell you or what agents suggest. Learn enough about publishing contracts to smell when something is fishy, and whenever possible, get a good publishing lawyer to review the document. If you won't go to any trouble to take care of your own affairs, you'll find that no one else will, either.

One More Wrinkle on Amending Contracts

A writer pointed out on a forum that in my amending contracts post I hadn't discussed the "don't ask, don't tell" school of editors that accept changes without comment if you make them but refuse any changes if you ask.

Unfortunately, although simply amending the contract may seem like a solution in such circumstances, it isn't because the editors obviously don't look at what you do send. If they did, you'd be back in trouble because they'd resent that you actually changed something without asking.

Also, ever get a signed agreement with the changes back from these editors? If not, the door open, in case of a legal conflict, for the magazine to argue that the original terms were the ones that governed the relationship and that you wouldn't have proceeded without getting a countersigned changed document. To win you'd have to go to court, but the results would be uncertain, and that means you'd have already lost considering the costs of taking legal action.

Problems of Amending Contracts

Many freelance journalists who don't like parts of their contracts will mark up the documents they receive, initial the changes, sign, and send the paper back in without talking to their editors ahead of time. They might think this is effective, but it generally is the single weakest way to address contractual issues and can cause problems down the line. Not only are you less likely to get what you want, but you might unnecessarily ruin the business relationship at the same time.

Consider the entire exchange from the view of the editor. You mailed a contract to a writer, received a signed copy, and put it in a stack to file. Your days are busy and you spend a week or two on deadlines. Eventually, after editing the article that the writer had sent and getting it ready for the next issue, you are doing some filing and come across the contract. Just before you forward it to the contracts people, you notice a pen mark. And another. And others. You've spent significant amounts of time on your end of the assignment only to realize that the writer isn't willing to work under the terms you had thought were set. Now everything might be up in the air, all without enough time to recover and find another writer or another article.

Take it a step further. The signed version shows up directly at the legal department, which then calls you and asks why you authorized all these changes to the contract without talking to someone there. The writer has just gone from an inconvenience to someone who is damaging your professional reputation.

Back to being the writer. The editor should have noticed the changes at the start, but realistically it could easily happen that no one would see your demands until late in the game.

Why do many take this approach? Because they are afraid of confrontation and hope that by sending an amended version, their demands will sneak by and they won't have to talk to someone. Although this might work on some occasions, it's ultimately self-defeating. Each time you act from fear, you reinforce that feeling and response. The next time you get a contract, you're that much more likely to change, sign, and send and hope that it doesn't come back to haunt you.

Some argue that by mark up the contract and sending it in, you're legally declining the terms and counter-proposing another set, so that if the publisher uses the piece, those would be the terms covering the relationship. That might be technically right, but it's still a way of thoroughly screwing yourself. You are always, always, always better off contacting the editor regarding any terms and conditions that you find unacceptable. The editor might not be able to make the changes or might. Or the editor might be unable to bend on one issue and instead offer something else - possibly more pay or something else important - to make up for it. Even if there is no other reason at all, talking or emailing the editor with your concerns and what you're seeking helps you build a relationship, and it's the relationship that can become a steady income stream, not the piece of paper that the company overlooked and is now forced to accept.

Update: one more consideration here.

Contract Review: BlogBurst

The blog synidcator BlogBurst.com (owned by a company called Pluck) came up in conversation at FreelanceSuccess.com. The idea of getting some entity to help promote a blog and possibly, gasp, generate some revenue sounds intriguing to most writers, myself included. So I headed over and read the mandatory license agreement. Here's a walk-through of some of the sections according to my understanding (though remember I'm not a lawyer and this isn't legal advice):

1.2 In the definitions section, notice that a Publisher is any entity that has an agreement with Pluck to license material. That means potentially anyone, and you have no control over who uses what you write.

2.1 This includes the wording "you grant to Pluck and its affiliates a non-exclusive, worldwide, royalty-free, license to reproduce, distribute, make derivative works of, perform, display and disclose the Work (and derivative works thereof) for the purposes of (a) adapting the Work to fit within Publisher web sites without substantially changing its original meaning, and (b) distributing the Work (and derivative works thereof) to Publisher electronic web sites"

Non-exclusive is fine on the surface, because you can also do something with the material. But "make derivative works of" means that the company can change what you write. Yes, it has some limitations, but what does "substantially changing" mean? If you cite a news source that you like in your blog and another one runs the piece, could it replace that reference with one to its own site? I suspect so.

2.2 Pluck can give other publishers the same rights that you grant it, so you could go into competition with others licensing and selling your work - because it's royalty-free. There's another consideration that we'll catch under section 3.

3 Pluck's responsibilities are to ensure that you get a byline (though the size and placement of which - maybe far after the blog entry in a round-up of bylines - it and the publisher determines). You also are supposed to get at least one link to the web site on which your content appears. Now remember 2.2. What happens if the publisher starts sublicensing? It's not clear to me that Pluck guarantees that any further use down the chain of permission will get the same.

4.1 You can get royalties "subject to Pluck's then-current policies." But what will they be? Maybe you won't get any? (Check the site and you'll see that at the time I write this, only the top 100 blogs get any compensation.) And the agreement clearly says that you don't expect payment. It may be that Pluck wants to pay people - at least the current management team does. But what happens if they sell the company down the line? The generosity might be less obvious.

5.1 Trouble here, because we're talking about international publishing over the web. How are you doing to guarantee that your work won't violate any of the list of rights under any legal system in the world? You can't, because what may be legal under one law - take US federal law, for example - may not be under, oh, the libel laws of the U.K. or Canada. There are people who travel to other countries to sue writers because it's a lot easier than doing it in this country.

6.1 If Pluck or some of its licensed publishers do you wrong, you say that $1,000 will be the cap of what you can pursue in court - and that will barely get your lawyer out of bed in the morning.

6.2 This indemnification is not only tied to the overly broad warranties of section 5, but it has the following dangerous clause:

(b) any claim or allegation that the Work infringes in any manner any Intellectual Property Right or any other right of any third party, is or contains any material or information that is obscene, defamatory, libelous, slanderous, or that violates any law or regulation, or violates any rights of any person or entity, including without limitation rights of publicity, privacy or personality, or has otherwise resulted in any consumer fraud, product liability, tort, deceptive trade practice, breach of contract, injury, damage or harm of any kind to any third party.

According to this wording, if anyone should so much as charge you with infringing on any of his or her rights, or that something in your writing is obscene or defamatory, of that what you write violates any law or regulation anywhere in the world, you pick up all the expense tabs for Pluck, all of its affected publishers, and all of their managers.

7 The agreement stays in effect unless you terminate it - and you can only do that "by using the Terminate Account feature in the BlogBurst software." Ever try to end a recurring charge, or to stop a series of marketing emails, or anything similar by clicking the appropriate link? 'Nuff said.

8.3 "The parties consent to venue and the exclusive jurisdiction of the state and federal courts located in Austin, Texas" means that if either you or Pluck has a problem with the other, you have to take it up in Austin. That's an expensive proposition unless you live there.

8.7 Pluck can change the agreement as it wants so long as it provides you "notice," and if you send in anything new (and that might be virtually automatic since the company is syndicating your blog), you've agreed to the change. Even if it calls for retroactive changes.

8.8 Any of Pluck's affiliates gets to be included in the indemnification section, and so they could directly sue you.

It takes pluck to come up with some of these conditions, but it would take foolhardiness to agree to them.