8 Points to Smarter Client Contracts

A friend and colleague recently asked me if I had a contract template that I used for clients. I said that I didn't because my contracts are generally heavily tailored to the specifics of an engagement. However, I was able to point to seven different clauses that I like to include to protect myself. Here they are, plus an eight that my publication and IP lawyer, Anthony Elia, had suggested for future use as I was suing an ex-client:

1. Whether a work-made-for-hire contract or not, no rights should transfer until you get the final payment for the job. If the assignment consists of multiple parts and the client pushes back, you might consider transferring rights to parts as payment for them is completed, if you can separate them out. But if a client balks completely on such an arrangement, I walk. If they're not willing to say that they can only use material if I'm completely paid, then they're saying that they're not interested in upholding their end of the deal. I have better ways to spend my time.
2. I charge late fees for payment in arrears. Again, this should be a non-negotiable. Companies want to charge me late fees if I don't pay on time, and I don't see why I should underwrite someone else's financing.
3. Have a clean definition of the work and then an hourly fee for requests beyond that definition. If the client cannot agree to a clear work specification, then it is going to ask for more and more to be done for the same fee, either trying to push the boundaries to get more for its money or because it is confused and inefficient. In neither case am I willing to give something away for nothing in return. That's not to say that I don't do favors for regular clients. I do. But that's with an ongoing relationship where I get plenty of return for my investment.
4. Give a hard deadline for reviews, with drafts past that date getting contractual automatic acceptance. Generally, payment in corporate assignments keys on acceptance of parts of a project. You do not want to be waiting for money because someone or other won't bother to look at what you've done. This protects you against that, largely by acting as a goad to get the client to do the reviews it owes you. Make the deadlines reasonable, but not too long. I find that two weeks max is a good timetable for getting a review done.
5. You are the service provider, so make sure that any legal disputes, whether state or federal court, are in your home jurisdiction. You don't want to go to another state to sue for money owed you. Similarly, get your state's laws as the ones governing the contract. If the client won't go for that, then eliminate the requirement completely. Don't allow them to insist that you agree to jurisdiction in their area, because, frankly speaking, if legal issues come up, you're most likely to be the plaintiff, not the defendant.
6. Explicitly address expenses and any other item that might reduce your income. Don't expect to work such things out after the fact.
7. Make deadlines offset from when you actually get the expected payments. So if the first should be in a month, make it a month after you have the signed contract and deposit. Before you've signed the contract is when you have maximum leverage in negotiation. Once you start work, your leverage decreases exponentially with the time you've put in.
8. The final point is to try to include a clause that has the loser in a legal action responsible for the legal costs of the winner. I had thought this a danger, but my lawyer pointed out that the chances were overwhelmingly likely that I'd be the one having to take action, and getting costs covered if you have a good case becomes a goad to getting people to settle

Contract Review: Cyberhomes

Someone sent a copy of a Cyberhomes.com contract to me for review. As always, remember that I'm not a lawyer and that this isn't legal advice. Also, please remember that contracts change, so if you're looking back at this from some future date, it might not completely apply. Also, I'm only mentioning the clauses that I think either raise questions or might need explanation.

• 1. Engagement of Services - This is a contract for ongoing work over a one year period, so if you sign, don't think that you'll be negotiating better terms on a second piece.


• 2. Compensation - It's payment on acceptance, which later in the contract appears to need to come in writing, either email or mail. So you'd need to be sure you get an editor to explicitly say this. Only then can you invoice. Payment is 45 days after invoice.


• Grant of Rights - Clause 3.1 states that they get "the worldwide, non-transferable, perpetual right and license to publish, display and distribute any Works (in full or any portion thereof) submitted by Contractor under this Agreement in all forms of media (including, but not limited to, all electronic media, whether now known or hereafter created and whether owned and operated by Client or not)." But notice that it does not say exclusive rights. I read this as saying that it's implicitly non-exclusive. Also, you see that they include the ability to let others "display on third party websites and third party printed publications." So they can either resell your work or even let others use it without pay, whether on the web or in print. That means you can't offer any sort of exclusive rights licensing to any other client of the same material. They can also use the material as promotion for the site, using your name, bio, and image "provided such promotional materials present Contractor in a fair and professional manner." I'm wondering if they could portray you as a "site writer," creating more of a sense of affiliation than there may be.
  
  They have the right to edit your work - a pretty normal thing, except that it opens a back door to paying even later. "In such cases, payment will not be processed until such revisions have been submitted by Contractor and approved by Client." So, even though it says pay 45 days after you invoice and you can invoice after you have something that's approved, it's essentially not approved if there are edits, and who knows how long those could take to get to you?
  
  Finally, for this clause at least, they acknowledge that you own all other rights - of course, because you didn't sign them away - but they want you to credit Cyberhomes.com any time someone else reuses the work. This has become an often-seen practice that is ridiculous. What if the other publication doesn't want to do it. If you can't get this struck, which is by far the better thing to do, because you shouldn't have such conditions on your own intellectual property, then add that you will use "best efforts" to include it. That way, if another client says no, you haven't lost the sale.


• 4. Representations and Warranties; Indemnification - The warranties section is actually one of the most reasonably constructed that I've seen, and I don't think you'd need to change a word. There is a problem in the indemnification: "arising in whole or in part from any breach of Contractor’s representations or warranties hereunder." If a problem comes only in part from a breach of the warranties, why should the writer take on all of the financial burden? So strike "or in part".


• 5. Independent Contractor Relationship - It's fine to say that you are responsible for your own taxes, but not to make the time table on which you file taxes part of this contractual arrangement. What if there was some form you forgot to file? (It takes federal, state, and local into account.) So scratch that part.


• 6. Confidential Information - I'd want the following language stricken: "Breach of any of such obligations under this section will result in irreparable and continuing damage to Client for which there will be no adequate remedy at law; and, in the event of such breach, Client will be entitled to injunctive relief and/or a decree for specific performance, and such other and further relief as may be proper (including monetary damages if appropriate)." You don't want someone to have the automatic ability to get an injunction, as this is a pretty extraordinary type of remedy. Let them convince a judge.


• 10. Governing Law - For a long time I've advised against wording that allows automatic recovery of legal fees for the prevailing party of a legal dispute. Some recent experience on my part and discussion with a lawyer now has me thinking quite the opposite. It's far more likely that you'll be the one suing, and so you want to make sure that you get your costs covered. However, there is the danger that if you brought an action and lost, you'd then be liable for their costs.


• Exhibit A - Under the "Deadlines and Submissions" section is a requirement to provide source contact info with an article. That would be fine, except they say they'll keep it in a database of source contact info and make it available to anyone they have writing for them. So, if you value your source relationships and arne't interested in making them available for potentially multiple contacts from the publication that might get annoying, you might think twice about doing anything for this site.

Random House Changes E-book Royalty Scheme for Worse

Any time a publisher talks about shifting from royalties based on cover price to royalties based on money they actually see, look out. You are about to lose income. That's what is happened over at Random House regarding e-books. Starting December 1, the royalty rate will be 25 percent of the amount Random receives.

A recent Random House contract states that on all copies of a work sold as an electronic book, the royalty will be 25% of the US suggested retail price until the book's advance has earned out, and 15% of the list price thereafter. Under the current (pre-change) royalty structure, on a book retailing for, say, $10.00, the e-book royalty would be $2.50 per download at 25%, then $1.50 per download when the royalty rate shifts to 15%.

By contrast, the new royalty of 25% of the net receipts comes to something like $1.25 per sale on a $10.00 book (25% of 50%). So, Random House's change is definitely a reduction of e-book income for authors.

Well, there's a surprise - a publisher trying to take even more of the money pool. Here's the other shoe that the article doesn't mention: that leaves the publisher open to striking better deals with the retailers because they have more room to give in some as a bargaining chip for, say, better placement on a web page (called marketing dollars) while still maintaining the previously realized margin. It's the writer who does the subsidizing.

Figure that if you deal with Random House this will affect you, according to the letter that has been floating about:

With the widespread use by consumers of electronic devices such as the iPod, the Amazon Kindle, and the Sony Reader, a significant market for ebooks and digitally delivered audio content is finally ready to emerge. In response, Random House is making major investments in our digital infrastructure and is creating digital files of active titles so that they are available for sales as ebooks, as downloadable audio, and for Internet search and discovery."

Might as well have all the authors chip in for Random's profit goals.

Contract Review: Preservation Magazine

Here's a review of the publishing contract for Preservation Magazine, produced by the National Trust. As always, I'm no lawyer, this is no legal advice, and you shouldn't say yes or no to a contract before trying to negotiation whatever changes you want.

• Compensation They use the term "honorarium." I'm guessing that is a non-profit and/or academic legacy. It's still pay, though. One problem here is that there's effectively a 25 percent kill fee if they don't publish, no matter what the reason. There is an expense cap which you might need to negotiate, depending on the assignment.


• Review They can edit your manuscript and if they want rewriting, they expect it to be done "in a timely fashion," whatever that ends up meaning. They can also decide not to publish your article. It would be more reasonable for them not to pay you the full fee only if the article, after at least one requested rewrite, was unprofessionally written or off the originally assigned topic.


• Rights They want FNASR to start for 90 days after the intended issue date listed at the top of the contract. That means if they don't use it by then, you get it back. Unfortunately, that would probably mean that they wouldn't publish it and you wouldn't get the full fee. They also want a perpetual, non-exclusive license to display, print, and distribute the article, including keeping it in web sites and putting it in an online archive or database (which probably means the database services). The right is transferable, so they can technically allow someone else to do the same, and I suspect that could be structured so they transfered the license for a given use, then it gets transfered back again, so they could effectively resell your piece.


• Representations and Warranties There are various warranties. The one about that the article does not "infringe any copyright, trademark, or proprietary right, violate any right of privacy, or contain libelous material" is overly broad, particularly as the contract is not explicitly construed under the laws of a specific state, and many of these issues can vary widely from one state to the next. Also, the section includes indemnification for any breach or alleged breach, which means if someone claims you've done something, you're on the financial hook. That last part is a deal killer for me.


• Payment You get paid 45 days after submitting an invoice.


• Contractual Relationship You're a contractor, not an employee.


• Sole Agreement These are the conditions and a note from your editor or any other assurance does nothing to change anything.

Contract Review: More Magazine (New Version)

I received another More contract. This one is a bit different from the More contract I reviewed in March, so what I'll do is cover the areas where there's a difference. Please remember that I'm not a lawyer, that this is not legal advice, and that it's always possible to try and negotiation contract changes with publishers. Also, be aware that Meredith is known for having multiple contracts, so my review of this version may not be of help if you get a different one.

• Grant of Rights This is the single most heavily restructured section of the contract, however, from my reading, the new one largely just makes explicit what the previous version allowed.
  
  First, More magazine gets six months exclusive use after being first to publish the piece. Then Meredith can reuse the material in print, in any of its magazines (and I'd have to assume that would include custom publications). The contract also says that Meredith can distribute the article "in any other device, medium or mode of communication, whether now known or hereafter developed, throughout the World, upon payment of five percent (5%) of the Fee." At least there is some extra payment, and I'm guessing this is angled toward magazine distribution through the Kindle.
  
  Use on More's web site is the same as before. There is also the right after the exclusivity period to run the article on other Meredith sites for an additional five percent of the fee. It's not clear to me whether this is one time payment for use on all sites, or a per site payment. I suspect the former, but it would be good to get a contract change to make that clearer.
  
  Another use, and, again, this would have been allowed under the previous contract, I think, Meredith can authorize others "to use the Work to promote Meredith or any Meredith publications or web sites in which the Work is published," which means that could take out some sources of income and help dilute the market for the material.
  
  The company can put the article into any "version or edition of the Magazine or derivative thereof published outside the United States, including the right to reproduce and distribute the Work as part of such version or edition, in print or electronic form or in any other device, medium or mode of communication."
  
  The contract explicitly states that Meredith can syndicate the article, although I think a reasonable interpretation of the previous contract would have enabled it to do so before.
  
  Meredith can authorize reprints and allow third parties to publish and distribute them for a 10 percent fee. Whether that is a one-time fee or per use is unclear. Also, this provision explicitly says that it doesn't come into affect for the previous two types of uses (subgraphs g and h), so I haven't the slightest idea when this would actually occur. It could be that they're talking about a classic reprint, which would mean reproducing the pages on which the article appeared originally in the magazine.
  
  The company can also give away copies or distribute in any way the article to non-profits for educational use.
  
  Much of this is unclear, and you'd need to get someone, probably from Meredith's legal department, to send you an email explaining what the differences are.


• Waiver of Moral Rights This clause is missing from the latest version.

Otherwise, the content of the two contracts seem pretty much the same, though some sections are shifted around a bit.

Important Clause in Blogging Contracts

When I wrote about eight important principles in negotiating contracts, I mentioned a recent negotiation I undertook for some blogging work I'm doing. What I didn't mention is a clause that is of particular import in this line of work: traffic payment triggers. Many sites base their pay at least in part on traffic. Often, certain thresholds of page views result in a bonus. But accompanying bonuses can be an expectation of minimum traffic levels, below which a writer does not get paid.

I can understand trying to give writers incentives to pull in more traffic, and they can work to everyone's benefit, but there is a bottom line degree of marketing that the site owner must do. Yet, because many sites have implemented such a demand, there is some expectation of this being "reasonable." Obviously it isn't; asking writers to help create increased success is one thing, but expecting them to guarantee traffic unfairly shifts a responsibility of the business owner to the contractor.

I did find a negotiation strategy that worked. In the contract was also, as one might expect, a termination clause, giving either party the right to end the association with a certain amount of notice. I argued that as I am a professional writer, I must be paid if I'm producing the required work, but as the company could terminate the agreement without cause, it was free to do that should the traffic not meet its minimum expectations. Had they said no, I would have walked, even though there was an exemption for a number of months, as they realized that the site was still ramping up. Because I had already been doing some work during the negotiations, and they had seen a building of traffic, they were probably disinclined to have me leave. If they were happy to see me leave, then it was a relationship that wouldn't have lasted long anyway.

In contracts for online work, remember that practices are still developing, and writers overly anxious for exposure and an outlet have often encouraged ones that are simply untenable for a professional. Don't get outraged. Instead, Break apart the roles as laid out in the contract, contrast them to accepted basic business customs and look for other protections that the contract gives the publisher.

Eight Important Principles in Negotiating Contracts

I often hear writers talk about the difficulty in negotiating contracts and how they can't get changes. Admittedly, some publications simply will not bend. However, trying to get what you want is always the wise move, because often you can, even with large companies. For example, I was recently negotiating with a web site owned by a large broadcast company. A number of the clauses were unacceptable to me, whether a measure conveying copyright or a provision that I provide rights to anything in my articles, which would include fair use quotes I took from other sites.

First step was to mark up the contract with what bothered me and, even more importantly, why. Negotiation is a process during which each side tries to convince the other of its viewpoint. I then spoke to the top editor of the site and explained my concerns. In virtually every case, he had not realized the nature of a problem, including the rights transfer, because he thought that there was a provision to use the material elsewhere.

Next, the editor forwarded my concerns, noted as comments or mark-ups in the contract, to their lawyer. Eventually I got a document back with the lawyer's counter arguments. For example, when it came to copyright, the lawyer noted that his organization was in a better position to enforce infringement actions and needed the copyright to do so, which was an interesting line of reasoning that I had not heard from a publisher. In another case, I mentioned the fair use issue and he wrote, "If Sherman is contending that he is using third-party content as 'fair use,' what is the legal basis for that?" Again, a reasonable question and one that I would need to answer to get an agreement that did what I wanted.

Note that I say "did" and not "read." You always have to keep in mind what you are trying to achieve and what you are willing to give up to get there. However, given those restrictions, you must be creative in how you achieve your ends.

In terms of copyright, I countered with something that I said I'd seen at the New York Times Magazine - joint ownership. This is something I do not like to do, however, it is far better than turning over copyright and having no option to use the material. (I knew that I wasn't about to get additional money for their reuse and licensing of material.) The lawyer came back with something that I was told would be a take it or leave it position: transfer of copyright, but with the following added to the end of the rights clause:

Notwithstanding the foregoing, Contributor shall have a non-exclusive license to use the Contributor Content, and any derivative works created from any Contributor Content, in other blogs, and in books and other publications.

In other words, although I transferred copyright, I could resell and reuse the material in any other form of publishing I wanted and could create derivative works. It wasn't perfect, but good enough to make the venture worthwhile.

As far as the fair use provision, my argument that it was regular practice in blogging to take fair use quotes of news stories and blogs held sway, and any third party material was "subject to applicable 'fair use' principles," which, again, I could live with. (There was no way I would sign a contract requiring me to transfer ownership of something I didn't own.)

The entire process probably took three to four weeks - all during which I was writing for the site. Why? Because even if we didn't come to an agreement, they would owe me for what I had done and, in the absence of a written contract, my rights were extensive. The more material they had and liked without a contract, the more pressure they were under to reach an agreement with me.

I don't write this to pat myself on the back, but to make a few practical points on negotiating with publishers:

• Know what you want.
• Know why you want it.
• Know your fall back position and what you are ready to accept that will sufficiently support your interests.
• Dare to ask for everything you want at the start.
• Be prepared to effectively debate a point, with carefully reasoned arguments that use fact and logic to argue your case.
• Learn enough about applicable law to bolster your position.
• Be prepared to walk if necessary.
• Take your time in the process and present your position in writing, unless you can think quickly enough on your feet to handle a phone negotiation. (And even then make sure you've worked out your position and reasoning ahead of time.)

Trying to charm someone or make them feel guilty or complain that a given position is "right" will get you nowhere in the long run. Only sufficient fact and logic will reliably sustain you in negotiation.

Reusing Material from WMFH Assignments

Some discussion on a writers' board centered on what degree of change was enough so that you could sell a piece originally sold under a WMFH contract, and then if the publication went out of business, did the rights return to the author, even if written under WMFH.

On the first question, I'd personally be wary of including ANY of the material written as-is under a WMFH contract in any other piece. Under such an agreement, the publisher owns copyright and could sue you for using "its" material. You would need to toss the entire piece and start from scratch, although the information in your notes would be available (assuming you didn't sign those away, as some contracts require), and the quotes actually belong to the people you interviewed (it's best to ask if they mind being included in another piece, so you extend the implicit permission you had in the first place). But to take even some of the sentences? Not only would you be looking to lose in court, but you'd involve the second publisher and instead of burning a bridge, you'd reduce it to its constituent atomic parts.

On the second question, unless there is a clause specifically stating that you would get rights back in case the company went out of business - and I've yet to see a clause like that in all the contracts I've reviewed - then, no, you don't get anything back. If you sold your car to someone who then died without any living heirs, would you automatically get the car back? No, because you sold the property and no longer have a claim on it. It's the same with WMFH - you sell the intellectual property and no longer have any claim on it or any right to it.

Contract Review: Hospitality Design/Nielsen Business Media

As always, I'm not a lawyer; this isn't legal advice (just my opinion and interpretation); I'm providing comments on contracts, but you still need to read one of the contracts to see how everything applies to your circumstances; and you should always negotiation for the best terms you can get:

• 1 The contract is retroactive, so if you've ever written anything for any of their publications (because the contract is with the company), it will apply to that work as well.


• 2 You give them to use, publish, and distribute your work any way they want for as long and as often as they want. They can grant others the right to do the same, so they are in competition with you for reuse. At least it's not exclusive. They can make "reasonable" changes to the work and will give you credit "where possible."


• 3 You own copyright and may grant others the right to use the material, but that has to be 8 weeks after the first publication by these people.


• 4 You say that you have not infringed on copyright or any other intellectual property rights, and that you indemnify them if the work does infringe a third party's intellectual property rights.


• 5 You're independent, so not eligible for any company benefit, and you are responsible for your own taxes.


• 6 This is a strange one - they say that they have to pay you any mutually agreed upon fees, but they don't say when they have to pay them, or what triggers payment. Is it acceptance? Publication? Who knows?


• 7 This is construed under New York law, and nothing in an invoice, email, or conversation changes any of the terms of the agreement.

Contract Review: The Independent Traveler

Got this in - as always, I'm not a lawyer; this isn't legal advice (just my opinion and interpretation); I'm providing comments on contracts, but you still need to read one of the contracts to see how everything applies to your circumstances; and you should always negotiation for the best terms you can get:

• 1. Description of Services You have a contract governing all the writing you do for them, and individual "Schedules" contain the terms and deadlines for any given assignment. And then there is this sentence: "Notwithstanding any other provision of this Agreement, IT shall have no obligation to publish any Work produced or created by Author hereunder. " That means no matter what else is in the contract, they don't have to publish something that you've written, even if you have a Schedule saying that you have an assignment.


• 2. Acceptance This is the first time I've seen a contract that says acceptance happens according to the procedure in the assignment, or Schedule. So you have to read the assignment carefully, because something as fundamental as acceptance can change from one to the next.


• 3. Payment Again, the terms governing payment are on any Schedule. If they aren't there, then you have a fuzzy arrangement, particularly as payment depends upon acceptance. They say they pay 30 days "following receipt of a properly submitted and correct invoice(s)," but they don't indicate what property submitted means. Could that include a given format? Is there specific information you need that you might not ordinarily put on? Expenses are on you, unless the Schedule specifically states otherwise. Again, the assignment becomes at least as important to read as the contract.


• 4. Relationship of Author and IT; Author’s Business This is supposed to be the section where they set out that you are not an employee, but an independent businessperson. However, some of the details get a bit ... detailed. For example, "Author represents to IT that Author is maintaining a separate set of books or records that reflect all items of income and expenses of the business which Author is conducting. " Also, look at this: "Upon request, Author shall provide IT with proof of independent contractor status satisfactory to IT, including but not limited to tax records and the United Business Identifier (“UBI”) in the state where Author does business." You are agreeing that they can ask for your tax records and that you have to show them.


• 5. Insurance You might have to get insurance, depending. "Without limiting the foregoing, to the extent this Agreement creates exposure generally covered by Commercial General Liability and Professional Liability insurance policies, Author will maintain at its sole cost and expense such insurance policies covering its obligations under this Agreement. "


• 6 Ownership; Third-Party Materials Because of the phrasing in this clause, it seems like this is a generally contract for any type of contracted work. They want to own everything - including notes and copyright of what you write. Think of it as WMFH with notes included. You also waive moral rights, which doesn't mean anything if you're a US writer, but does if you're from Canada or Europe.


• 7 Confidential Information Apparently you're supposed to sign a separate non-disclosure, and in the case of conflict between that NDA and this contract, the NDA rules. Among the "confidential information" that you cannot reveal to anyone are the terms and conditions of the agreement. If you have any doubt if something is confidential, you ask them. I'll hazard a guess as to an affirmative answer.


• 8 Term and Termination They can terminate the agreement or any assignment at any time and pay you only for what you had done up to that date. If you hand't handed in a draft, my guess is that they could argue that they didn't owe you anything. If you argue that you had done research, I'm guessing that they could demand the notes and then own them. You can give notice on 30 days, but still have to complete any assignment that would be due before the termination date.


• 9 Author’s Data They can use your name, bio, and likeness, and can also license that to anyone they want regarding an article. Becusae you have no control over where they will sell it, you have no control over where you will appear and in what context. Also, they can allow others to further license the article as well as your info, meaning control is now completely out the window.


• 10. Warranties and Representations There are some broad warranties, like "the Work will not include the unauthorized use of name or likeness of any person, libel, slander, defamation, disparagement, piracy, plagiarism, idea misappropriation, and any invasion of the right of privacy." You cannot infringe anyone's copyright nor any other property right, including trade secret. What if you find out about some information that a company was hiding? Can they declare it a trade secret, putting you in breach of your contract?


• 11. Limitation of Liability They get a limit on the damages you can get from a court from them. If you have to travel (and this is a travel publisher), then you also have to take out a "reasonable" amount of travel insurance.


• 12. Indemnification You have to indemnify for an actual claim that you infringed a third party's "legal right," including copyright. For anything else, it's alleged breach type wording, so if someone even says that you libeled them, you're now indemnifying the publisher.


• 13. General State of New York laws govern the contract. They want you to agree that any legal action has to take place in New York, and in Superior or District court, which I think means you cannot use small claims court lto get money you're owed. The prevailing party automatically gets costs and attorneys' fees, even if the court wouldn't otherwise award them. You cannot elect a trial by jury (which might work in your favor). This is the entire agreement, so what an editor tells you to the contrary is meaningless.

Book Authors Must Get Ready for Instant Books

The Guardian had an article the other day about UK bookseller Blackwell's plan to install print-on-demand systems throughout their 60 chains - right now 40 pages a minute, but eventually 80, meaning that a buyer could get any of the million titles available in about 4 to 8 minutes.

As with most technological changes, there are ups and downs. The pros for authors is the ability to keep books available at stores, where people are doing their buying. Yes, a majority of book sales happen outside traditional bookstores, but don't knock that big an audience. Even if your book isn't on the shelf, there's a chance that someone could find it.

But now for reality. This is going to be a big marketing onus on the writer. Publishers barely support a brand new book in its first three months of life, so who is going to create buyer awareness of your title? You are, or else you aren't going to get sales off these machines. And for how long does the publisher get to keep your book on the backlist? Have you checked the out-of-print clause in your publishing contract recently? It may be that so long as there is one edition - like a print-on-demand one - the publisher gets to keep the title as active. But if you get the rights back, is the book even going to be in the system? How easily can you get another version ready?

There are no set answers, just questions that require some thinking for those of us who want to make a living in this industry.

News on Regnery Publishing and a Contract Tip

The following comes, with permission, from the newsletter that publishing attorney Anthony Elia has started. Five writers had brought suit against Regnery Publishing, a conservative publisher, alleging that the parent company:

...entered below market value deals with other wholly owned subsidiaries of Eagle Publishing - in some cases transferring the books at or below cost. Because the authors' royalties were based on a percentage of funds received by Regnery and not on sales by the subsidiary, the authors lost royalties as a result of the shuffle.

In addition, the suit claimed that the company was diverting sales from retail markets to its own subsidiaries, again lowering the royalty payments. The suit was dismissed. Why? Because the contract obligated any dispute to work through arbitration.

Folks, this is not the first time writers have alleged such things, nor will it be the last. I remember a case a few years ago when a book publisher was selling at a steep discount to the distributor that it owned, again artificially reducing the royalty amount. You've got to read your contracts and, in the case of something as complex as a book contract, preferably get a lawyer to go over them.

Anthony's current issue (you can sign up for the newsletter at his site, linked to his name above) also has a tip on language to include to find out more about what happens in subsidiary rights deals.

Contract Review: Custom Solutions From SmartMoney

This contract is from the custom publishing arm of SmartMoney. I'm not a lawyer, this isn't legal advice, and make sure you negotiate, because there are some terms in here that I'm betting you'd want to change. I'll review the clauses that I think might be of interest. Warning - every now and then I find a contract that seems so odious that I indulge in sarcasm and ranting. This is one of those cases:

• Clause 1 This would seem like standard "You're going to do this and the assignment schedules become part of this agreement" wording, but there's a killer sentence at the end: "However, should Consultant receive an offer to work on other projects that may be competitive to SmartMoney’s business, then Consultant must get approval from SmartMoney before accepting such assignment." Huh? Since SmartMoney is technically in the custom publishing business, you have to get flipping approval to do something that would be competitive, otherwise known as writing for any other custom publisher? No where in the agreement does it specify what SmartMoney considers its business to be. Could that include writing an article directly for a company that SM (notice the intentional allusion to pain games) might want as a client? Check their site and notice some of the work they do: magazines, newsletters, annual reports, booklets, bulletins, and web sites. To me, that's a "that goes or I go" statement, as they're trying to control your income and business without any promise of future work.


• Clause 2 It gets better and better, or not. You must perform all the work demanded "in an acceptable manner" to get paid. Also, "In the event the Materials are not accepted, SmartMoney will pay Consultant a reasonable kill fee, the amount of which shall be determined by SmartMoney in its sole discretion." That's right, it's totally up to them, even though they could deem it unacceptable because you delivered it on a Tuesday. There's no definition of the acceptance process or how long they can delay it.


• Clause 3 a) They want WMFH, which isn't surprising because, after all, they want to own your custom publishing time and prospects. They can do anything they want with what they accept. You have to wave moral rights.
  
  b) They also want "the sublicensable worldwide right to use Consultant’s name, biography and likeness in connection with the publication, use, advertising and promotion of the Materials, SmartMoney, its Custom Solutions division or its clients’ use of the Materials, and to make such other promotional use as SmartMoney, its licensees, successors or assigns may determine." In other words, your name, background, and image become a commodity that they can use again and again to promote themselves and anyone they sell the rights to, even if you would not want to be associated with said organization, product, or cause. You cannot ask to have your name withheld if they butcher your writing, yet they don't have to give you credit at all.
  
  c)You have to warrant that "SmartMoney’s exploitation thereof [of your writing] will not violate or infringe the copyright, patent, trademark, right of privacy or any other right of any person or party or be false or libelous or defamatory." That isn't just saying that your writing won't infringe copyright or be defamatory, but that their use won't be. There have been cases where people successfully sued for libel because of the way materials were used, even though the materials themselves were fine. You can't determine context, but the way I read this, you are warranting their use, which includes the context in which they use your work. Now for the indemnification: "Consultant hereby agrees to indemnify, defend and hold SmartMoney, its partners, affiliates, trustees, directors, officers, employees and agents harmless from and against any and all claims, demands, damages, costs and expenses (including reasonable attorneys’ fees and expenses) arising out of or related to a breach of Consultant’s representations, warranties and obligations hereunder or in any way to any of Consultant’s services provided hereunder..." Notice that you're not just indemnifying for a breach of the warranties, but for anything that would arise out of the services you provide, which means if they get sued and someone cites your article, you could find yourself indemnifying them. This is really bad.


• Clause 4 This is one of those idiotic confidentiality clauses so strictly constructed that technically you could not tell a source the subject matter of the article you are writing. When you stop working for them, all materials that they own, you must return. As you've done WMFH, I think that means every copy of any article you've written for them. If there is "a violation or attempted or threatened violation of this provision, SMARTMONEY may apply for and obtain, without any requirement to post a bond or other security, an injunction to restrain such violation or attempted or threatened violation..." Boom, an injunction because they think you might reveal confidential information. It doesn't matter whether it's likely that they'd do this or not, because you're bound by it should someone in the company decide to make use of the clause.


• Clause 5 You can't try to get any employee or client to leave. If you do, or if there's a threat that you might, they can again get an injunction to stop you.


• Clause 6 If the non-disclosure isn't enough, here's a gag clause (first time I remember seeing this in a publishing contract): "Effective with the signing of this Agreement, Consultant agrees to make no statements relating to SmartMoney, its affiliates or the project Consultant is working on orally or in writings which impair or disparage the reputation of SmartMoney or its clients." In other words, your opinions are now censored.


• Clause 9 I think this contract was adopted from one meant for more general services: "Consultant will comply with all federal, state and local laws regarding business permits and licenses that may be required to carry out the work to be performed hereunder." You'd need something like that if someone was doing building or renovation. But not for writing, so it doesn't apply. And, contractually, they cannot make you attend staff meetings. At least something in the contract is appealing.


• Clause 10 The contract is construed under New York State law, which is good in terms of the interpretation of libel, et. al. But if there's a contractual dispute, you have to go to New York courts.


• Clause 11 This is the entire agreement, so nothing that an editor says or writes to the contrary of any clause has any force. Similarly, don't expect any term that you include on your invoice to have force - and that means how quickly they have to pay.


• Clause 12 You cannot tell anyone that this agreement even exists and you cannot tell anyone about the services you are providing to them. "Without limitation, Consultant agrees that Consultant will not issue any press release or other information concerning Consultant’s services." Sounds like that means you cannot mention them as a client in your marketing.

Contract Review: Pet Age Magazine

A writer requested a review. As always, I'm not a lawyer, this isn't legal advice, and you should try to negotiate what you don't like about a contract. I'm focusing on the potential problem areas, for the most part.

• They pay 45 days after acceptance, but there is no definition of when acceptance happens. I'd suggest modifying the on acceptance to something like "...on acceptance, which may not be unreasonably delayed or denied."
• They want the following rights: First North American Serial; right to use the article for no additional pay in any of the publisher's other magazines; non-exclusive right to license others to use the piece electronically in any form; non-exclusive right to license reprints so long as the author agrees in writing in advance and, if the publisher doesn't get money, the writer doesn't get money, either.
• Publisher can use writer's name, image, and bio in conjunction with either the article or the magazine itself.
• You wave moral rights and will make "reasonable revisions" to the article at their request.
• You must provide source contact information and provide confirmation of all facts and keep that material for at least a year.
• You warrant, among other things, that "the Work contains no matter that is unlawful, obscene, constitutes defamation or otherwise violates the rights of any third party, including, without limitation, any copyrights, patents, trademarks, confidentiality obligations or trade secrets, privacy rights or publicity rights," which is very broad and should be constrained with the word "knowingly" or even "to the writer's best knowledge."
• The publisher wants you to indemnify not only for an actual breach of the warranted, but for alleged breaches, which is really bad, because you could be stuck even if you had done nothing.
• In case of a breach, or even an alleged breach, the publisher wants the automatic ability to ask a court for an injunction.
• If there is a legal dispute, you have to take it up in Chicago.

Contract Review: Pace Communications

Here is a recent Pace contract that a writer sent. Please remember that a) I'm not a lawyer, b) this isn't legal advice, and c) my remarks don't necessarily mean that the publisher will or will not negotiate (it's always good to try the latter):

• Clause one This gives the tentative article name and an approximate word count. Unfortunately, there are no limitations on the amount by which the count can go up, but the payment (clause 10) may be a fixed amount.


• Clause two This is the clause where you state that you aren't going to infringe anyone's copyright. However, there is a built-in indemnification "from all damages, costs and expenses which PACE may incur by reason of any copyright infringement or claim of copyright infringement." That "claim of copyright infringement" is a problem, because what if you were not guilty of it? Ask to alter the wording so that it is only for final judgments of copyright infringement in a court of competent jurisdiction after all appeals have been exhausted.


• Clause 3 This is a fairly reasonable warranty that, to the best of your knowledge, the article has nothing in it that, if published, "will be libelous, defamatory or scandalous or violate any personal or property rights of any third party." You agree to cooperate in joint defense, though, frankly, I'm not sure whether that might open you to having to bear some part of the legal costs. It's also not just for any libel or defamation, but the claim of libel or defamation.


• Clause 4 Here's where you get the delivery date and you agree that you'll keep a copy of the article around at least until the publication date. (What, someone would not keep a copy?)


• Clause 5 You have to provide phone numbers, releases, references, and so on for fact checking. Does that mean you have to send over hard copies? I don't know, but would suspect that, yes, you would. Do you have to provide your notes? I'm not sure it would be covered, and I certainly wouldn't volunteer such material, since fact checking should be independent verification that what you claim is true actually is according to someone else, which means specifically going to sources that aren't looking at your notes.


• Clause 6 If you don't deliver the article on time, they can cancel the contract, and there is no provision made for someone having extended the deadline. If they don't like the article, they can request one rewrite. They start payment when they "verbally accept" the article. I'd follow up with an email to establish a trail of that acceptance, as otherwise there is no way to prove the telephone conversation happened. There is no time line for them having to provide acceptance or rejection within a given guideline, and they should only be able to reject an article if it does not cover the agreed-upon topic or does so in a way that is not professional. As for a kill fee provision: "Prior to acceptance, should a rewritten Magazine Article not be satisfactory to PACE, or if PACE elects for any reason not to publish the Magazine Article, it will pay WRITER a kill fee of U.S $XXX in full and final settlement of PACE's obligations hereunder." In other words, even if you do provide something satisfactory, they can decide to kill it (maybe because of a dual assignment or because editors changed their minds) and not pay you the full amount, which is unfair.


• Clause 7 They can edit to their usual standards.


• Clause 8 They have absolute rights to how the story will be presented and and to cancel, modify, or delete any story. (Please don't ask me the difference between canceling a story and deleting it.) Paired with clause 6, that means absolute control over whether they have to pay you the full fee or not.


• Clause 9 They want 120 days of exclusive worldwide rights to all media, including electronic. During that period, "PACE is further granted the right to reprint or quote the manuscript without fee or permission for a period of one hundred and twenty (120) days after publication so long as appropriate credit to the writer is given." This wording is sticky, because, strictly speaking, it doesn't give them the right to let another use it. However, this would let them put the same article in another of their magazines, in an edited form if they wished, without paying you anything extra so long as they included your name.


• Clause 10 They state the fee for the piece, you promise that you'll work on "revisions or reasonable additions" during editing and fact checking, even if you've already been paid. You are promised credit (though it would be good to have the option to remove your name should any editing be objectionable). Payment happens through direct deposit.


• Clause 11 You state that you won't get money, gifts, or services from anyone in the article or anyone who appears in preliminary research without approval in advance from Pace, although "Advertising or promotional novelties of nominal value or bonafide business meals are excluded." In other words, are you getting comped lodging, admissions to places, or other such things? The contract probably forbids them.


• Clause 12 You're an independent contractor and responsible for your own insurance, taxes, and benefits.


• Clause 13 Neither you nor Pace can assign responsibilities to someone else. That could be taken to mean that you could not hire someone to do research for you.


• Clause 14 If any part of the contract is waived (and that has to be in writing), the remaining parts are still in force.


• Clauses 15 and 16 Both were missing from the copy I saw (which was retyped by the submitter).


• Clause 17 This is the complete understanding, so anything to the contrary in writing or said doesn't count.


• Clause 18 The laws of North Carolina govern the agreement.

Why You Can't Sue for Copyright Infringement If Someone Doesn't Pay

The thought of suing a publisher for copyright infringement if it doesn't pay is tempting. I once asked my publishing lawyer about the concept (not for a specific reason, but just because it's good to know about these things before you actually need them). He said that, in general, a court would not accept that approach and, instead, view the issue as a breach of contract.

I hadn't thought that much about the concept until someone brought it up on a writers' board. I passed on what I had heard and was asked by someone who had the same initial thought as I why this wouldn't work. Here's what I answered, though, please remember it's my own ramblings here, not the explanation of someone really qualified in legal issues.

The problem is that copyright infringement happens when one party uses another's copyrighted material without permission. However, in a dispute over a publishing contract, there *is* permission. Causing the conflict is that one side has not upheld its side of the contract (which is actually a private law drawn up between the two parties - this will become important in a moment). Therefore, the court focuses on that dispute as the one needing resolution.

If the writer were able to sue for infringment, he/she would be free to back out of the very same contract, changing terms after the fact, which is the egregious action of the publisher. That reduces the private law - the contract - to something with no power to compel people to meet the terms. Looking to an analogy for a moment, just because someone breaks the law by robbing a bank doesn't give the state authority to also ignore the law and use unreasonable search and seizure in prosecuting the crime. To say that the framework of law no longer applies when one party disregards its obligations is to say that we live in a world of chaos, because law will be out the window every day.

Now, my lawyer did say that there could be cases under which a writer *might* withdraw permission. For a contract to be valid, there are some basic assumptions. One is that there is a commercial transaction - the reason why if you're giving away something through a contract, you may require the payment of a dollar, because then there is something given on both sides. Another is that both parties enter the contract in good faith.

You'd pretty much have to show a pattern of such behavior on the part of the publisher to demonstrate that it entered the contract in bad faith. Then a court could find that there was never a contract in the first place, and you might be able to sue for infringement. However, that is an extreme situation that a court will be naturally reluctant to enable. You would be asking the court to assume that you, the writer, would be truthful and absolutely correct on first principles. As virtuous as I'm sure you are, you don't want a court to assume that, because then it could just as easily assume that the publisher was the party presumed to be accurate and honest. Instead, the court sees the possibility that there might have been a mistake, or some problem that caused a breach, and that's not the same as bad faith.

In short, to have the automatic right to sue for copyright infringement because of a payment dispute would essentially be to give everyone the right to act as though a contract had never been signed because of virtually any disagreement. And there's no court that wants to go down a slippery slope, let alone a slippery vertical drop.

Contract Review: More

Someone asked me to review a recent MORE publication contract. Please remember that I'm not a lawyer, that this is not legal advice, and that it's always possible to try and negotiation contract changes with publishers. Also, be aware that Meredith is known for having multiple contracts, so my review of this version may not be of help if you get a different one.

• Introductory paragraph: Although there is an indication at the top of this contract that the magazine is More, this contract is with Meredith for any writing you do for the company.


• The Works: This clause indicates that you're signing a master agreement, because it covers any writing you do for the company, and that you retain ownership of the writing you do. So, the next time a Meredith editor tells you that the company only has a work made for hire contract, tell them, at least as of the first quarter of 2008, you know that to be incorrect. Also, be careful if you also write for the custom publishing arm, which, I believe, is WMFH. You want to be sure that any subsequent contract does not restrict your ownership rights in the regular publications.


• Schedules: This says that you get an additional paper for each assignment that will have the specifics, like length, subject, and date. The second sentence is confusing: "Each Schedule shall set forth a description, due date(s) and fee for the Work(s), and a term (the "Term") if Creator is a contributing editor." I'm not sure what the term is, and it's not clear whether being a contributing editor applies only to that last part or the entire thing. However, as this License Agreement governs all work you do for them, I'm guessing that it's the term part that only applies to contributing editors. Meredith would still have to explain what it wanted and what it was paying.


• Grant of Rights: The first subsection, (a), states that the following rights are exclusive, so be careful, because what you sign away you don't have. There is the first right to publish (first to be in print) in More. They keep that exclusive for six months after the actual publication date. If they delay, you cannot exercise other rights that would have the article in print until they finally do put it into the magazine. So, for example, if they delay by three months, you cannot license the use in another magazine anywhere in the world, although you could allow a movie adaptation. They also want "the right to reproduce and distribute the Work as part of the issue of the Magazine in which it appears, in print and electronic forms and in any other device, medium or mode of communication, whether now known or hereafter developed, throughout the World." That means they can reprint the magazine or put the magazine into an electronic database. But because that's as part of the issue of the magazine, the exclusivity of that is fine, because you can't reproduce it as part of the magazine without their permission anyway.
  
  The next part gets a little slippery. The have the first as well as the ongoing right to publish the article in electronic form on their web site. The right to put it on the web is also exclusive "from the date hereof until six (6) months after the first publication of the Work by Meredith." The question is what "first publication" means. They don't say print publication, so the minute they put it on the web, the clock on online use starts ticking for them, whether it's appeared in the magazine or not. After six months, they get non-exclusive rights to have it on the web. Personally, I'd try negotiating for one month exclusivity, online or print, and then try to compromise at two to three months instead of six, which seems too grabby. But that's me. Happily, they specifically mention the site address - www.more.com - so they can't use it on any other Meredith-owned site during that period. Then there is subsection (b).
  
  After the exclusivity period, you grant an ongoing non-exclusive license "to use the Works, including, but not limited to, the right(s) to print, publish, display, perform, reproduce and use the Work in all forms, works and derivative works." That "but not limited to" is a tricky phrase, because it means they can essentially do anything with the Work that they want, including creating new materials based on it (even a screenplay if they wanted). I think that would also let them use the article on any other of their web sites, so it would probably be wise to explicitly limit them to putting articles only on more.com and not on other magazine web sites.
  
  The next part is "to edit, abridge, adapt, translate or modify or alter the Works," so they can change it however they want without your permission. Next, "to publish or authorize the publication of the Works and distribute and sell the Works in all devices, media or modes of communications, whether now known or hereafter developed, throughout the World." So they could sell it to people using an ebook reader like Amazon's Kindle, or even on the Amazon site, as a standalone article. That's what the "authorize the publication" does - let them tell others they can publish it.


• Waiver of Moral Rights: Although US writers don't have so-called moral rights, writers in many other countries do, so if you're in Canada or the UK, you're giving up protections that you would otherwise have.


• Payment: Payment is on acceptance, but there is nothing in the contract that indicates when that happens. A modification like "acceptance, which will not be unreasonably delayed or denied" could be useful if they are looking at it promptly.


• Kill Fee: This is not a great version of a kill fee clause. The company may pay "at its option" a 25 percent kill fee, should it not accept an article. But that means an editor could decide not to pay. All rights immediately return to you if they pay the kill fee, but it actually doesn't explicitly say that rejection means all rights revert. I don't see how any court could keep you from taking the rights if they rejected the piece and didn't pay, but better to have these bases covered explicitly so you never have to get into a legal hassle. If they accept the piece, then they have to pay, but they don't have to use it and they retain their rights. That essentially puts the piece on ice. It would be good to add a clause that if they accept it, they have some period of time, maybe six or nine months, in which to make use of their exclusive rights or to lose them. If you own the piece, why should you lose all future value that they acknowledge you should have just because they don't do anything with it?


• Verification: You are responsible for doing all the research and turning in a piece "in accordance with Meredith's customary deadlines," but there is nothing about what those deadlines are, so be sure they are explicitly put into the assignment. You have to retain all notes, drafts, etc. for three years, and you have to cooperate with their editing process and make all "reasonably requested" changes.


• Subject Exclusivity: You cannot "write, publish, or cooperate in the publication of another work in any medium now known or hereafter developed on the same or a similar subject as any Work until the earlier of a) ninety (90) days after the date of the first publication of such Work by Meredith; or b) twelve (12) months after submission of the final version of the Work to Meredith." That should be restricted to directly competing publications. Why should you not cover the same topic for a completely different type of publication and audience? And there is a competitive publication clause later on.


• Republication: If you resell an article, you have to credit them. Get them to change that to you'll make best efforts or, better yet, strike the clause. You cannot control what another publisher will do, even if it agrees to such a clause, and the insistence could make it impossible for you to make a sale, which is unreasonable.


• Competitive Publications: This is a hidden stinker. You can't allow a magazine or web site "competitive to the Magazine or Site" to run the piece at any time, unless that magazine or site is owned by Meredith. There is a list that they include as an addendum, but they go on to say that this isn't limited to that list. Let them be satisfied with the list. By saying that you can allow republication in another Meredith title, I think they are essentially admitting that they don't have the right to run the article in another of their magazines, which would potentially be a contradiction to the material in the rights section. In short, push to say that they will only use it in the More magazine and web site earlier on.
  
  If you're a contributing editor, this is even stickier, because there is a separate clause stating that you cannot have anything you write appear in any competitive publication without their written approval. Not just something that you wrote for Meredith, but anything you write.


• Use of Creator's Name: They can use your name, a bio that you approve, and your likeness to promote the article, no matter what Meredith magazine or web site it's in. A positive note is that they don't have the right to authorize another to use them.


• Representations and Warranties: You say that what you write is original and not previously published or, if previously published, you have the right to license the material on an unlimited basis. If you got any part from a third party, you need written consent to use the material on an unlimited basis. This last part is actually a little tricky. That would technically include quotes from an interview, because once you record or write down what the other person says, they have a copyright interest in it. You could say that giving the interview is tacit approval, but this section of the agreement says that you need written consent, so to meet your obligation, you need a release for every interview subject. I'm not saying that the editors realize this, but, at least from what I can see in the wording, that is your obligation. There is the standard stuff about having the authority to sign this agreement and the full unencumbered rights to license the rights that Meredith seeks.
  
  Now we have another tricky part: "that the Works do not contain any scandalous, libelous, or unlawful matter; and that the publication of the Works will not infringe on any third party's copyright or other rights, including, without limitation, the rights of privacy and publicity." When writers question such clauses, editors say, "Why can't you guarantee that you won't plagiarize?" But while the clause says that you won't infringe copyright, it goes a lot farther, mentioning, without any limitation, other rights. Rights of privacy and publicity depend greatly on the specific law governing them. In this case, as the contract states later, the applicable laws are of New York State, so even if someone takes offense and takes up legal action in Canada or the UK, the definition of these rights would have to be examined under New York law. Also, it should be that what you write "will not knowingly infringe."
  
  You have to use best efforts to check the accuracy of non-fiction work and to avoid appearance of conflict of interest. There is also a sentence where you say "Creator will hold Meredith harmless for any breach of these warranties and agrees to cooperate fully with Meredith in responding to or defending against any third-party claims relating to the Works." Good news is there is no indemnification (the lack of which doesn't mean that a publisher cannot sue you if it thinks it is spending money for a big mistake on your part). The hold harmless is for any breach of the warranties. As you are making the warranties, I think that you would have to be the one to breach them, and if you do, you cannot sue Meredith for that. However, if there is a problem because Meredith made a change that caused the problem, I don't think you'd be limited from suing them.


• Termination: Either party can terminate the agreement or any of the schedules (read that as assignments) with 45 days notice. So, you could get an assignment and, if it were due longer than 45 days out, have an editor cancel it.


• Confidentiality: You can't talk about what you know is coming up in the magazine, or about story ideas or sources that don't end up in an article. Also, you're not allowed to discuss or disclose the terms of this contract, a type of clause I don't particularly like, as writers talk and should be able to.


• Independent Contractors: You say that you're not an employee, you're responsible for your own benefits and taxes, and you get paid as an independent person.


• Entire Agreement: If an editor says, "Oh, don't worry about that clause, we wouldn't enforce it," worry. This clause says that no such comment, whether verbal or written, would have any bearing on the contract as it is.
  
• Governing Law: New York State law governs the agreement, which is good. But if there is any kind of legal dispute, you are agreeing that you have to resolve things in the courts of either Des Moines, Iowa or New York City.

Warning: Natural Solutions Paying Slowly

If you write on alternative medicine and other non-conventional approaches to health, Natural Solutions (formerly Alternative Medicine Magazine) might seem a natural, but according to recent reports from freelancers, doing so could do some serious damage to your cash flow.

What brought the topic up was a flood of posts on the Freelance Success board from people who said that payment was taking upwards of five months. For example, one writer told me that she had written a piece in the summer and told to invoice on September 2007. The contract, which I've seen and reviewed, says that payment is supposed to come in 45 days. This writer was finally paid in early February. Even if we assume that the invoice arrived toward the middle of the month, that is still 4 1/2 months to be paid for a piece that was already accepted.

Another writer mentions having completed two pieces in November. One of the pieces, slated for the April issue, was a short for which the writer had heard no feedback. "I repeatedly attempted to get feedback or invoice info from my editor, and finally did on 4-Feb, when I was told to send my invoice," the writer says. The person has not been paid. However, the lack of feedback meant that acceptance was withheld, so payment was now not technically due until mid-March (it still hasn't arrived as of the time of writing). As there were no questions to the writer, the piece could have been accepted as was back in November, suggesting that a January payment would have been reasonable. Yet a third writer completed a "rush job" in November, and the piece ran in the March issue, but as of yet has not been paid. Even more disturbing was a writer who had pitched a story idea in November. Three months later, in February, she followed up. Apparently the magazine decided to use the pitch as is as a short piece, and the writer says she was never contacted about this. She immediately sent in an invoice but has yet to be paid.

I spoke with Natural Solutions editor in chief Linda Sparrowe, who came in about three years ago when the magazine, under the former name of Alternative Medicine, was going through a change in ownership and many writers were complaining about late payments. She admits that there have been "some absolutely slow payments," though she says that at least some writers have been paid on time. Sparrowe says that payments have appeared to get slower over the last few months, which coincides with a redesign, which apparently has caused the company to be "short of cash."

"Of course I know who gets paid and who doesn’t get paid," Sparrowe says, though she also stated that she was surprised that many writers were complaining. "It is a concern to me." She does stress that everyone has been paid, though obviously not under the terms of the contract. Sparrowe also says, "I try really hard to get [freelancers] paid," but that she is not in control of cash. Check runs are every two weeks, and she puts in a list of who she needs to pay, but the ultimate decision of who is paid and who isn't is up to company management.

I brought up the issue of the contract. I double-checked with publishing attorney Anthony Elia about my suspicion that when payment continues, on a wide basis, significantly beyond the contractual terms, then there may well be grounds of claims of fraud. Generally contract breaches do not rise to the level of fraud, but when there is a pattern of behavior that shows a company is making promises that it reasonably well knows it will not keep, that it is not doing business in good faith, and that could make the breach a fraudulent action. She expressed surprise and concern about that and said she would talk to management and alter the contract going forward to include a more realistic payment deadline. She said that without speaking to management, she could not say what that period should be, but that I could contact her next week for an update.

I've never done business with the magazine or editor, and don't know the inner workings. However, I will say that a significant increase in time to payment is a classic indication of financial trouble, particularly when the editor says, "We're paying out as much as we're taking in." In my opinion, that would mean there is no cash cushion to allow for smoother operations, and that puts business operations into a risky state. My suggestion would be first to not query the publication until a contract showed a realistic time scale for payment. That might be a longer time than you are willing to wait, but better to know it up front. Second, my own inclination in such a situation would be to hold off for a significant period of time - at least six months if not a year - and wait to see if payments started to come more quickly. Continued slow payment would suggest consistently poor cash flow, which could mean that the client was not financially stable and you could potentially find yourself lining up with many others, dealing with a bankruptcy court. Just ask the people still waiting well over a year for payment from the company that used to publish Pages.

It's the Archives, Folks

A story in Folio tells how National Geographic continues the argument that it can publish a software-enhanced CD version of the magazine without paying photographers additionally. The legal battle is going on 11 years, now. I won't recap the history; that's available at the link. However, I will note a specific paragraph:

“It’s the archive that’s at stake,” Angelo Grima, senior vice president and deputy general counsel for the National Geographic Society, said during a panel on digital rights at the Magazine Publishers of America’s Magazines 24/7 conference at the Hearst Tower Thursday. “We’ll go to the Supreme Court if we have to, because our archive is that important to us.”

Of course, this isn't just about photography. It's about "content." The real economic value of images or stories or graphics or video or audio is not the immediate market value of any single piece. No, it's having the collection - the entire collection - that is at issue. It is the collection that allows companies to sell rights to databases, to get advertising, to charge institutions for subscriptions. And every bit helps add to that value. That means the story you consider unimportant in the long run because it is timely, or short, or so specialized, has lasting value. Just because you don't grasp the value of a piece of antique furniture doesn't mean that you should toss the Louis XIV chair. No, you find out the value, and then figure out what you want to do with that value.

I know this probably seems like an old and tired argument to most of you, but it's vital and we have to remember it again and again. What we create has value. People want it because it does have value, both on its own and in a given context. When businesses want you to give up lots of rights, even non-exclusively, it is because they want to make money off what you have done. Don't you think it's only reasonable that you also make money from it?

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.

Be Wary of Free Contract Advice

There are a number of organizations and individuals, including me, that provide contract advice to writers. I was accidentally copied on an email exchange involving one and, as is my wont, unapologetically (and, probably, unwanted) expressed my opinion. Why? Because, frankly, I was shocked.

The person representing the organization clearly didn't understand the serious implications of a given indemnification clause for the writers the organization advises. The person actually wrote, "In my [publishing] experience ... this clause is pretty standard and puts the onus to get things correct on the writer." Here's the clause in question:

Each Party hereto shall indemnify, defend, and hold harmless the other Party, its editors, officers, employees and agents with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys' fees, to the extent that it is based upon a claim that, if true, would constitute a breach of any of the indemnifying Party's representations, warranties, or agreements hereunder.

Two things concerned me. The clause, specifically, has the dangerous phrase, "based upon a claim that, if true [emphasis mine], would constitute a breach."

In other words, the writer needn't have done anything wrong to be at risk. So long as someone brings a legal claim or action on a ground that would indicate a breach of the writer's warranties (covered in a separate clause), then the writer takes on the financial obligations of the publisher - even if the publisher decides to settle with the litigant. That means the publisher could make a decision to settle the issue and the writer, even if in disagreement with the action and contesting any wrongdoing, would be left to cover the costs not just of the financial settlement, but of the publisher's legal costs. This could happen even if the writer did nothing. Even if a court would not have compelled the writer to do so. Even if the publisher was lax in its own review.

Although I'm flexible in negotiations, an indemnification clause worded in this or similar manner is one of my true deal-killers. I've warned hundreds of writers personally, and heaven knows how many in seminars and panel discussions, about the implications of such wording. However, someone from a writers' organization, who clearly didn't understand those implications and, clearly, with the best of intentions, was inclined to give advice suggesting that the clause was one of those things that writers must bear.

The second aspect that bothered me was that the person from the organization was so ready to take on the view of a publisher. Granted, this person actually had spent considerable time working at a publishing company, but when you are trying to represent the interests of writers, that point of view must go out the window, because you have to think about what is best for the writers and how to help writers push back on terms and practices that are unconscionable. Here's part of one of my responses through some back and forth:

Also, in general indemnification clauses are, of their nature, unfair to the writer. You almost never see the publisher indemnifying. A lack of an indemnification clause doesn’t mean that the writer is any less on the hook. It does mean, however, that the court doesn’t have a say as to whether the particular circumstances in a case actually warrant the writer taking on the financial burden, or if the publisher was significantly at fault as well. Also, the publishers have insurance, particularly important if someone decides to sue even though there isn’t anything wrong the writer did. If there is indemnification, then there is an incentive for the publisher to settle, no matter what the merits, and expect the writer to cough up the expenses, including the publisher’s own legal expenses.

The reply? "If they can be struck, sure, do that. But most publishers insist they be retained..."

However, that's not true. There is flexibility among many publishers, whether producing materials for online, books, or magazines. I’ve seen writers get such clauses struck, or at least modified to get rid of such things as the "if true, would constitute a breach" language, or by properly inserting language like "if such decision is upheld in a final court of appeals." If you’re providing contract assistance to writers, you need to be able to give a close read that immediately sees such problems jump out at you.

I'm not mentioning the organization in question, because it doesn't matter, as the problem is inherent in the free review system that writers have come to depend upon, and that many unfortunately use as a substitute for their own judgment. When you're getting non-legal advice on contracts, you want to tread warily. Never assume that the person answering necessarily knows enough to hand out advice. Although the people generally have the best of intentions, it's very easy for them to suggest something that could return to bite you. Think that writers don't get sued and that indemnification doesn't happen? Here's a bit of something that my colleague Sue Russell, a long time advocate for writers and someone who also served on ASJA's contracts committee at the same time I did, once wrote about the need for media perils insurance:

Mike Mansel [who is a sympathetic insurance agent very familiar with writers’ problems] and his company assert that it’s not just true crime writers who should be aware of liability issues but even the authors or self-publishers of cookbooks and maps, as publishing expands into new worlds (audio books, e-books, POD, the Internet, etc.). Mansel’s site says:

“Unlike traditional claims involving allegations of libel, invasion of privacy, copyright infringement, piracy and plagiarism, errors and omissions claims seek to impose liability on the publisher for physical injuries or economic loss allegedly caused by some flaw or negligent publication in the ideas or expressions contained in the published material.

“Publishers of "self-help" or "how-to" books are particularly vulnerable to these types of claim, and suits have been brought successfully against publishers of cookbooks, books on toolmaking and metalworking, medical text books, diet and exercise books, books on herbs and wellness, maps and charts to name just a few.”

In other words, if you think you're safe because you're not controversial, think again. And if you assume that some organization, no matter the reputation, will give you sound advice, then you're a law suit waiting to happen. You don't know exactly who is handing out the advice. Has the person received any training or done any extensive research into the topic? Or is the organization grabbing whatever volunteers there may be because the "service" is at least as importantly to the organization or person a public relations outlet? Are you getting advice from someone who is such a principled activist that the person suggests walking away from this, that, or some other contract, even if there are ways of making the contracts workable for someone - you - who has to make a living?

Again, I'm not mentioning names because this isn't about one organization or individual or another. It's about the trouble you can find when you rely on the kindness of strangers, no matter how sympathetic or certain they might be. Educate yourself, and remember that no matter who claims to be helping, you always have the greatest interest in your own welfare. Look after it by arming yourself through education on publishing law, contracts, and negotiation.

Net Profits Screw Book Author

A studio taking advantage of an author - I know, it's hard to believe, eh? Thanks to a reader pointing to Sarah Weinman's blog, which pointed to this LA Times piece, we have a story of an author, Deborah Gregory, who wrote a popular line of books for girls: The Cheetah Girls. But when she signed on for a cut of net profits of the movies, CDs, DVDs, and even concerts that Disney has sold, she didn't realize she was also signing on for Hollywood accounting:

Her breezy, street-smart tales of five girls chasing pop music careers were turned into two hit television movies, and a third is now being filmed in India. Cheetah Girls CDs and DVDs have sold in the millions, and concert tours have hit more than 80 cities. Meanwhile, Disney's fabled merchandising machine flooded the market with Cheetah Girls shoes, dolls, toothbrushes, video games, backpacks, note pads, pillows, posters, T-shirts and the like.

Gregory expected to get a piece of the action when she signed a 2001 contract promising her 4% of the net from all of this activity. But like many other authors who have signed away dramatic rights, she says she never got a penny of the profits. Unlike screenwriters, who were backed by a strong union in their recently ended strike, most literary writers are at a disadvantage when negotiating with Hollywood. And it is difficult, if not impossible, for them to crack the safe.

According to the story, Gregory has seen $125,000 total in the last nine years. She's never gotten a "net profit participation statement" from Disney, although she's been asking. She lives in a studio apartment in Manhattan.

"This is an old, old story in Hollywood," said literary agent Nicholas Ellison, who has represented numerous clients in book-to-film negotiations. When studios are asked why an author has not received any net profits, he said, they often point to expenses that have grown larger than expected and contend that a hit picture has not, in fact, made money.

It's called "Hollywood accounting," and in some cases studios may be on solid ground, citing legitimate costs such as promotion and development. But in other cases, contracts contain definitions of "net profits" that make it all but impossible for an author to collect money that once seemed tantalizingly at hand.

No kidding. According to the WGA, 43 percent of Hollywood movies over the last five years were adapted from books, articles, and other writing. As Paul Aiken of the Authors Guild said, "The best advice we give is that you should try to get as much of your money upfront. You can't count on net profit deals for anything." And apparently the studios are ready to walk away from writers, including ones that aren't big names, because there are always other books available.

But don't think this is restricted to Hollywood. I've often found these "net profit" clauses in both book and magazine publishing contracts. Writers assume they're getting something real, rather than asking just what the hell gets taken out before you get to "net." It makes me angry - really angry - because this isn't some accident, or just a poor choice in wording, or even contract terms taken from some other kind of contract and assumed to be applicable, as happens often in publishing agreements. This to me reads as the deliberate intent to trick a writer into the assumption of getting one thing, while offering an opportunity to play with definitions to deliver a great big fat zero.

Let me ask you: Have you ever signed a contract that provided for participation in net sales through syndication, or licensing to overseas magazine titles? Now, I've known a couple of writers who have gotten extra money from Hearst, but other than those couple of cases, I've never heard of anyone getting money down the line.

This suggests that writers should absolutely push back on these net deals. Either the publisher isn't using the rights you grant and there is no money of which to get a cut, in which case this is opportunity wasted, or they do make sales and come up with ways of not paying. Do you ever get notification of other sales? Is there a clause, as in the book publishing business, where you could audit them? Nope, and I'm betting that's for a reason, though I cannot bring myself to calling it good. According to the story, Gregory wrote 16 novels in the Cheetah Girl series, sold 2 million copies, and got $180,000 in advances. Think that's good? Do the math: it's $11,250 per book. You could write how-to series titles and probably do better. As for the pittance she saw from what Disney got, I guess their expenses were inordinately high:

The first movie was broadcast in 2003, drawing an estimated 6.5 million viewers on its first night; the second aired in 2006, attracting 8 million. Two CD soundtracks sold a combined 3 million copies. National concert tours in each of the last three years have played to sold-out crowds. Merchandise made by a flurry of companies who leased the rights from Disney began flooding into malls across the nation.

Hollywood is again courting Gregory over a new series she's written. And this time she's not depending on just her agent, which is William Morris these days, but is independently hiring an experienced entertainment lawyer to represent her interests. You and I can't do that with magazine contracts, so maybe a "get this out of the contract" approach is what is necessary. And if the publisher insists that it needs the rights, then tell them you want something in there about being able to audit the results and to get notification of when these deals happen. Oh, and a definition of exactly what comes out between gross and net.

Contract Review: Scripps Networks

Someone sent a copy of a contract for Scripps Networks - owners of the HGTV, Food Network, DIY, Fine Living, and GAC cable channels and their associated web sites. I had seen one of these when I reviewed contracts for ASJA's Contracts Committee and am sad to say that this one isn't much better than what I saw then. Although, as usual, I cannot reproduce the contract itself (that being a copyrighted work), I will offer a paragraph by paragraph analysis, where I have something to say. As always, please remember that I'm not a lawyer and that this isn't legal advice:

• The Work This is the graph that describes what the writer will produce and notes that the writer works how he or she wants. It also states that SNI (Scripps Networks) "has the sole discretion to decide whether, when, and how to publish, display, exploit, or otherwise use the Work." This sentence will be important later in the contract.


• Fees This sections specifies the fees and also notes that it will pay within 30 days after all of the following occur: the Work comes in on or before the due date, or after with written permission, SNI decides that it's acceptable, and the writer sends an invoice with various bits of information they want, including an "issue date," which seems odd if you're working for the Web. (So far as I know, they're not publishing printed materials.) So, it is possible to submit late if you have written permission from an editor, which is certainly better than having a "finish by the due date" and no provision for an editor to agree to extend a deadline. It makes me wonder what would happen if a writer sent an email about a problem and couldn't get a response, as often happens with editors. If it came in a day late, although the writer had been asking the editor and not hearing back, would there be any grief? I don't know, although if they accepted the piece, I don't see how they'd get out of paying.


• Term/Termination One big problem here is that SNI can terminate the agreement "with immediate effect upon written notice to Writer, either with or without cause." In other words, if they change their minds on an assignment, they can leave you out in the cold, with no compensation for whatever time you've put in. Now, it could be that you could successfully sue them, but that would mean time and money to bring the action. This to me would be a deal stopper - and not the last one in the contract.


• Grant of Rights They want work made for hire, but they also run down extensive lists of rights, probably so that if the article is declared not to be a work made for hire, they've covered themselves. But they also get rights to use your name, likeness, and biography, not just in promoting the article, but "publications, information products, services, and merchandising." So, if you have something that hits really big, you could end up being used in promotion for derivative works, even though you don't see a dime.


• Kill Fee Another nasty area. If they decide not to accept the work, they pay you 50%. However, they have some outs: if they can say you changed the focus without prior written permission (in other words, get any changes in an email, at least, and not over the phone), if you don't submit anything, or if they decide that the work isn't up to snuff. Now, the real kicker: "Payment of the Kill Fee in lieu of the Fee shall not impact SNI's rights to the Work under this Agreement." Yes, read it again - if they pay a kill fee, they still own the work! So they can cut you loose and still do with it as they like.


• Cooperation Not sure that's the exact word I'd have used. Maybe serfdom. The agreement mentions submitting resource materials "including but not limited to" source names and contact information. Notice "not limited to?" That probably means they could ask you for notes or recordings. They can have you revise the writing with no limit on the number of revisions. The "not limited to" language comes up in supplying information for captions, sidebars, and headlines. So, you could end up writing a sidebar without any extra money - and who knows what else could be included under this phrasing?


• Endorsements From an ethical standpoint, this one might get your eyes crossing. If I read this correctly, so long as the writer meets certain conditions of getting to use a photography, he or she can actually take money from vendors to include that company's name in photographs! Huh?? SNI doesn't have to use the photo, but, come on, what kinds of standards is the company setting? At least they're not demanding that writers be pure while they wallow in perfidy under gleaming red lanterns.


• Warranty This reads worse than you might initially think, so keep in mind that the entire contract is construed under New York State laws. There are pretty broad requirements that you not infringe on copyright, personal or proprietary rights, right or privacy or publicity, moral rights, or any other right of a third party, and that the Work won't have any libelous or scandalous material. Libel and copyright infringement guarantees are fine under NY law (it's not like someone can claim libel under UK laws in this for indemnification to kick in), but moral rights? That might be a problem if you're doing something on a visual artist and somehow make them look bad in the context of their work. Publicity or privacy? As I have heard before, they won't modify this to include a "to your knowledge" type clause, even though they have an immensely broad set of warranties and most writers (including myself) are not going to be up on all of these enough to know if they might have crossed a bound or not. The hold harmless clause is far worse, though, because it applies not just to an actual breach, but to an alleged breach, so if you've been damaged, you have no recourse against them. Also, you have to hold harmless for "any claim or potential claim in connection with the Work." In other words, even if it doesn't come out of the warranties, you're still stuck. What happens if SNI breaches the contract? I think you're agreeing that you can't sue for damages. You waive moral rights - not available to US writers, but a consideration for any in other countries, and SNI isn't "obligated to pay any third party any amount in connection with the Work, including, without limitation, Suppliers." I'm guess this is to keep them from being liable if a writer gets a product on loan and doesn't return it, but it would leave me wondering if I could get screwed over legitimate expenses in connection with a piece. More deal killers.


• Indemnifications Like the hold harmless clause, you now have to indemnify them both for real breaches and alleged breaches of your warranties and for any claims that come about from the Work or the Agreement. I think that would mean not only are you responsible if someone sues them, but if there is a disagreement between the two of you, you get stuck with everyone's legal bills. Now, I could certainly be wrong on that last part, but even if I am, indemnification for alleged breaches or for any claim arising out of the article is another deal killer.


• General Provisions This agreement supersedes any other, so no matter what an editor says to you, it means nothing if it's not written down here.

One deal killer after another and pay that only slightly breaks $1/word translates, to me at least, as "Please, no informed and intelligent independent writers who have any regard for their own interests or welfare." Sounds like good advice - if you have the urge to do business with them, find someone who pays more and will treat you better.

The Future of Print Is ... Video

According to DMNews (the DM stands for direct marketing), Meredith is working with Comcast to launch Parents TV late this year. They want to hit all media and find new revenue resources, and understandably. Also understandable, though perhaps less desirable from the point of writers, is that the publisher wants to make use of the material is has:

“What we’re doing is either creating content based on our [magazine] editorial or creating content relevant to editorial,” he continued. “We’re not trying to do something outside the realm of the content we create on the editorial side – we just want to bring it to life. The programming won’t be about saying ‘Family Circle’ or ‘Parents,’ but it will be integrated into the content so people know the credibility is there.”

In copyright terms, this would be derivative content, as one is based on the other. It's a right that comes as part of copyright, and one that, sadly, may writers give away. There is a problematic mindset that many writers have: "If I don't already do something with it, or if I don't know what it means, then it must be OK to let someone else have it, because I wouldn't be selling it anyway."

Pull your head out of the sand and look around. Content has value, not just in its first form, but in the way people reuse it. Why? Because it saves them time from having to do all the work you might have undertaken to write it in the first place, and you have already come up with a unique expression of the ideas in your work. That has value, because otherwise a company has to pay to get all that done again. If you're giving away the right to create derivative works, consider that you're effectively handing people checks for sums to be deducted from your potential earnings. Also, this isn't stopping with Parents TV:

The launch of Parents TV is part of a larger Meredith strategy to extend branded content into new platforms. The company launched Better.tv in March. Comcast was chosen as a distribution partner for Parents TV because, McCabe says, it is the 2-to-1 leader in Video on Demand distribution.

Parents TV has already gathered a slew of advertisers, including Discover Card and Kimberly-Clark, makers of Huggies diapers. All programming will be ad-supported.

Meredith is offering custom-created content and product integration for Parents TV advertisers. However, McCabe insists that no infomercials will be made. Only if a product can be organically integrated, he says, without a negative reaction from consumers, will content be produced around it.

In other words, start adding zeros to those checks.

Watching Vague Contract Terms

Yesterday, I had an email exchange with a colleague who is very active in negotiating contracts and in writers issues. The topic turned to vague contract terms. it's a big problem in many contracts. A contract will seem to state something, and yet when you look closely at the wording, you see that much is left up to the imagination, or later argument.

A good example, as I often mention, is the term "acceptance." Many writers are satisfied when they see payment on acceptance in a contract. And yet, what does acceptance mean, when does it occur, and who at a client (whether a publisher or other corporation) must provide it? Does acceptance happen when the writer's contact thinks the piece will work? Does it happen after the questions have been answered? After final approval of the piece right before it's about to be used? We've just gone from acceptance happening shortly after the client reads the first draft to some time after a second or later draft, to effectively on publication. You can find such problems in rights clauses. For example, what does "electronic rights" actually mean?

Not everything in a contract can be pinned down to something that neither side could dispute. Courts recognize terms like "reasonable effort," though there is no hard and fast definition to which you could point. But much in contracts is hazy, and the miasma can lead to a cloudy future in a future dispute.

Reading many hundreds of contracts between the two of us, we're both convinced that most of the problems are not the result of lawyers' conniving, but of sloppiness and ineptitude. What lawyer wants to explain to a boss that he or she didn't nail down the terms of a contract in an unambiguous way? The bell curve applies everyone, and just as many lawyers are below average as above. However, that doesn't matter, because if you sign the mistake, you're stuck with it. Writers need to learn to read contracts - go through the language carefully and read it literally. Don't gloss over anything, and don't excuse yourself from asking the necessary questions by saying that you can clear them up in an email. You won't end up sending the email, and even if you do, it's the contract itself that you signed.

Address Problems When They Arise

A noticed a writer discussing a situation that has become too familiar - after taking an assignment and signing a contract, the client wants to change the terms. That in itself isn't necessarily unreasonable. Both you and the client (whether a corporation, a non-profit, or a publisher) anticipated certain conditions, but the client has realized that it made a mistake or that a situation had unexpectedly changed. Each side needs to remember that business, as well as life, has its twists and turns, and sometimes you need to be flexible.

However, changes may have an impact on how you and the client will work together. It may be that your contract addresses that; for example, it might provide payment by length, with additional material generating additional revenue. But what if someone wants to cut an assignment after you are in it and have committed the time that can no longer be contracted out to another client? Does the contract specify a minimum flat fee? Is there an expectation that as the scope drops, your pay drops? Does a flat fee bring into question whether an expansion will gain increased payment?

It's normal for questions to arise, and the time to bring them up is when they occur. Do not continue working until you resolve them. In the case I saw mentioned, the writer was asked to provide more material with an editor saying, "Oh, don't worry, I'll cut it down." Then, suddenly, the editor decided to run something twice the length and now, supposedly, had to get the top editor to authorize something. More likely, the editor in question was hoping the writer wouldn't say anything, and once the writer did, was now caught and didn't want to bring the situation up with the EIC. I had this happen recently with a corporate client that wanted to pretend that some commissioned work didn't happen, asking to be billed for one part and not another.

You cannot let this sort of situation pass, even if you think that you will permanently lose the client. Not only do you set a precedent, but you will feel terrible for letting yourself be bullied. There is a world of clients out there, and no matter what the size of one, you don't need to do business with it. Bring up the problem when it arises and don't meekly accept your fate.

This reminds me of a story an academic and consultant told me of a small manufacturer doing business with Wal-Mart. Over a few years, the retailer pushed for one concession after another. Eventually the small company said, "We're sorry, but it's no longer profitable for us to do business this way," and it walked away. The tiny margin on the volume didn't make up for all the hoop-jumping. Wal-Mart pointed out that it could find another supplier, and did. Interestingly, though, a couple of years later, the chain went back to the manufacturer, asking if it would be willing to take the business under better terms. What happened was that Wal-Mart had forgotten what the small company had remembered - that you have to look at the value of the entire relationship. When it went with another vendor, there were huge customer service problems that increased the overall cost of doing business, no matter how cheap the products seemed to be. But even if Wal-Mart hadn't come back, the company would have been better off, because it didn't back down from what it knew was its own interest.

Whether a client comes back or not is immaterial. There is more to life than money, and to keep your own self-respect, treat your business dealings as though you have the right to equitable treatment. If you won't, no one else will, either.

Go Ahead and Negotiate

I've seen on a couple of writers' boards recently news of freelancers being successful in negotiating with magazines. In one case, it was a writer pushing a major publication to significantly change contractual terms - and being told that most writers didn't bother to even ask. In the other case, someone pushed to get an assignment up from 50 cents to 65 cents a word.

No matter where you are in your career and no matter whta the circumstances, you can always negotiate and improve a business deal. There is almost never a downside to at least asking for what you want, and often you'll get at least a significant portion. That happened with me last week when a book publisher gave in on a number of terms that were bothering me. You won't know unless you try - and the more people try, the more pressure the publishers are under to change the way they do business.

It's popular to think that writers are a dime a dozen, and often publishers seem to think that way. But the smart ones know that they need ideas, and stories, and writers who can bring all of it together. Don't ask other writers what you can and cannot negotiate - find out by pushing in a pleasant and business-like manner. The companies that are unprofessional enough to walk away if you even dare ask for changes are the ones you don't want to do business with. The others will give in at least some, and possibly more than you realize.

Emerging Term on Agent Contracts

Book authors have directly felt the pinch of falling advances for a time. Royalties are all well and good, but the vast majority of titles don't earn out, which means that the money you see up front is likely to be all that ever comes your way.

But now there seems to be the possibility of a secondary bite. A writer had asked if I would review an agency contract. One of the interesting terms was in the commission section. If the book didn't sell for more than an $X advance, then the commission automatically jumped from from 15 to 20 percent.

There are a number of problems, here. One is that the agent is supposed to get the best deal possible. This clause can actually give the agent a disincentive to get the best deal possible when things are borderline. Let's pretend that the point at which the commission changes is $10,000 and a publisher has offered $9,000. The agent has done work with the publisher before and knows that it might be possible to get the advance up to $11,000 with an accommodation elsewhere in the contract. But work out the numbers: 15 percent of $11,000 is $1,650, and 20 percent of $9,000 is $1,800. It pays the agent better to take the deal that is poorer for the writer. Of course, the author wouldn't know that $11,000 would have been a possibility. The net amounts to the author are even worse: $7,650, versus $9,350.

Then there are other considerations. If the book does really well, the agent is now getting 20 percent of all additional money, and not seeing a drop in commission for what the writer and publisher have actually pulled off. Such deals become even more problematic when you're looking at the series books, where the advances really do hover in this range - and it's in this range that I've seen the demand for a commission escalation. I'm sure some agents would say that they can't make a living doing 15 percent deals at such money levels. I'd counter that the authors don't have the luxury to move to more profitable projects once they've locked into the one, while the agent can go sell other properties.

If you get a contract from an agent and see this sort of provision, I'd strongly advise against signing the paper, and even reconsider whether you want to do business with an agent who isn't willing to take his or her share of the selling risk.

A Corrected View on Personal Jurisdiction

On the first day of August I wrote about the issue of personal jurisdiction in contracts. Since then I've been able to reach my publishing lawyer and discuss the issue with him, as I was vaguely unsatisfied with what I had read. He gave me a more accurate view. The issue of personal jurisdiction is not that unusual, in the sense that parties to a contract are generally subject to the jurisdiction of where they take place. Things used to get a little odd in the early days of the country. If you had done business with someone in another state - even if the border were only a few miles away - you generally couldn't even serve them with papers unless you could catch them in your state.

That's has gone to the wayside, and generally if you sign a contract with another party in a second state, either of you can potentially be subject to the jurisdiction of either state when it comes to a law suit. That's why I have generally suggested to be wary of clauses that restrict jurisdiction of the city or county where your client resides, because you may not want to travel to protect your contractual rights.

The lawyer said that the concept of personal jurisdiction was generally tied in to specifying the area in which action would have to take place - back to that concept of giving the other party automatic jurisdiction. And if that had been the case, the phrase probably wouldn't have caught my eye so much. However, it was personal jurisdiction untied to any location.

The lawyer said that was largely gobbledygook, because without the location, it had no significant meaning. So if you see the phrase sitting along, not tied to a specific place - like personal jurisdiction in Nevada - then chances are you don't have anything to worry about from it. Sorry about any misunderstanding I've caused - the issue of contracts is one where you can never get so "experienced" that you can't learn even more, and the more you learn, the better off you are.

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.

Writer Rationalization

As human beings, we often try to make ourselves feel better about our choices - a process called rationalization. It's not an occasional activity, but constant. Virtually every time you buy something, you make an emotional decision and then come up with rational-sounding reasons for having chosen what you did, because we all like feeling as though we are in control. When we rationalize, we really make excuses so we don't have to face how we really act. Aesop's fable about the fox that couldn't reach the grapes and so decided they were probably sour anyway (source of the term "sour grapes") is a perfect example. And when we rationalize, we lock ourselves into behavior and decisions. That's fine if the choice is healthy, but dangerous when it's not.

If this happens constantly, you might expect that it also rears its head in business, and you'd be right. Writers often rationalize, for themselves and for colleagues, why the low pay they take is acceptable, or why they had to accept the punitive contract terms, or put up with poor treatment by a client.

There are times that a business decision makes sense, and other times that a choice is poor, and you don't want to face it more directly. For example, maybe the 50 cent a word assignment really is so easy that you effectively make $60/hour. But you need to look a bit deeper. Is $60/hour really that good for the work you are doing? Billable time for an independent practitioner often goes far higher on projects, and if you ever wanted to gross six figures, you'll need to be billing more like $75-$100/hour, depending on how many projects you can actually sell and complete. And your calculation presumes that you're accurate about the time you actually do spend, and people often grossly underestimate the figure.

But consider the possibility that the business analysis might also be an excuse to not break into better paying markets or to find more upscale clients. The contract terms might not be something that actually concern you, or you might be saying that because you're scared to try negotiating something better. Perhaps you are an XYZ-type of writer, or you could be scared of branching out into a new area and prefer the comfort of what you've always done. Maybe that editor really is that good to work for, so you take a lower rate, or it could be that you're focusing overly on wanting to be liked and that distracts your attention from improving your business.

No one else can give you the answers to such questions. It could be that in a cold business analysis, your reasoning is sound. Only be sure that you at least ask, and that you scrutinize your own answer. We are creatures who often lie, to ourselves more than to anyone else. And there's one person who gets hurt when we do.

Get That Publishing Lawyer

Over the years I've heard a number of experienced writers and authors saying that they trust their agents to tell them if there are problems with a book contract. In my experience dealing with contracts and agents, this is a big mistake. Here are the common rationales I've heard:

• Agents deal with contracts all the time. Writers deal with contracts all the time, and how many of them are capable of providng a thorough review of a contract? Of the many hundreds of writers I've met over the years, there has been just a few that I think would be able to find most (though possibly not all) the potential probelms in a contract, and most of them have either been lawyers, paralegals, or corporate contract negotiators. The logic doesn't hold up. Yes, agents are likely more sensitive to contract language than authors, and they will spot many problem areas. But not all. I've seen too many writers who had used agents and ended up with problems in contracts to assume otherwise. Unless your agent is a trained publishing lawyer, he or she will be unlikely to catch every potential problem in a contract.


• I trust my agent. It's good that you trust your agent. But why put your agent into the box of having to know what a lawyer knows? If something does go wrong, you will no longer be able to simply say that the agent didn't catch a particular issue. Now the person will have let you down and your working relationship will go into the dumpster. A good many agent contracts also specifically state that they're not lawyers and that if you need one you should hire one. They don't include the language just for fun.


• A good agent will know the business and the potential problems of a contract. I agree that a good agent will know the business, but contracts change constantly and a slight difference in wording can make a big difference in interpretation. Also, agents will know the area - publishing - in which they usually work. But what if there's a problem with some other set of rights? An attorney familiar with licensing deals brings a broader perspective.


• Contracts is why I had an agent to begin with. I beg to differ. An agent is a salesperson. You have the agent to sell the book to an editor for more money than you'd be able to get on your own, assuming that the editor was willing to talk to you. To expect the agent to be a lawyer as well is to demand extra work that the person is not qualified to give.


• Why should I have to spend the extra money? If you ever have a problem and find yourself having problems with the publisher that could have been avoided, you'll know why you spend the money. Most of the time there won't be a problem. For the times that there are and the stakes are high, the cost of the lawyer (who, charging by the hour, will cost far less than the agent) becomes inconsequential. The cost of fixing a problem after the contract is signed can be orders of magnitude (as in 10, 100, or 1000 times more) than the review would have been. If the book is important and the contract amount significant, then you should make that much of an investment in your business.

I think the underlying factor is a combination of not wanting to part with any money and, more importantly, fear of the legal process. All that's really involved, though, is doing some research to get a lawyer experienced in the field, submit the document, and get the review. This should cost far under $1,000 - possibly under $500. If you're looking at even a low five figure advance, you're talking about a relatively small percentage, and a lot of peace of mind.

Dangers of Boilerplate Contracts

Writers often look for boilerplate contracts. Some want a document for a client; others think that having a "standard" document will help them better understand what they receive from clients, particularly publishers. I understand the motivations, but almost inevitably the results are risky because the writers don't understand the limits of what they seek.

One is that the agenda of the entity presenting the contract will affect how it is written. Any writer who has received a contract from a publisher knows this, but the same is true for documents you find on the web. For example, I remember once reading through an example magazine contract offered by a writers organization. It called for payment not on acceptance, but simple receipt of an article. Receipt? That's like asking someone to pay for a car before they get to turn the key to see if it works. Payment on receipt is completely unrealistic and even unreasonable for the publisher, yet one writer after another now thought that this was a realistic approach. Chances are that there were some contract purists who refused work because they couldn't get such ideal terms.

Another problem is that boilerplate contracts are generally so generic as to be almost unusable. They almost never cover all the areas you need to address, and you also have to wonder whether a really good lawyer is going to create such documents for free use. When I needed a collaboration contract, I did start with a boilerplate - and then proceeded to double the length with all the areas I knew I needed to cover. Only then did I go to a publisher lawyer and get help with a final draft - and the lawyer added yet additional considerations.

I've often seen writers, even very experienced ones, trying to cut corners and get away with something they found and a free review from a writer's organization. Yet the very same people would shake their heads at someone trying to sneak by with non-professional writing. The same reasons apply. If you need a custom contract, you need to invest in setting up a proper contract, which will force you to consider problems before they occur. If you can't afford to get professional help, then either you're not doing enough of the given type of work (so the cost of the contract is reasonably spread over a number of assignments), or you're working for too little. Cutting corners might work for a while - even a long time - but eventually you get burned, and it's a cost that all the money you saved will never equal.

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.

When Contracts Aren't Enough

Reading a contract is an important task in the life of a businessperson. You agree to terms and conditions that govern how you will do business and that could come back to bite you in the posterior. But when dealing with someone new, there's an even more fundamental - checking someone's reputation.

Alex Beam in the Boston Globe wrote a column about a ghost writing firm - New York-based Penn Group - that has sued a couple of its writers, allegedly because the young owners got made at the authors. The column may be accurate, or not, and I have no idea who ultimately holds the blame for the dust-up. But I do know one thing - that type of story is enough on its own for me to shy away from doing business with a company.

No matter how beneficial a contract's terms seem to be, you should have the basic sense that you can more-or-less trust the people on the other side of the table. If you can't, it won't matter what the contract says, because someone somewhere will be ringing a lawyer.

Before considering a contract, do some some background research and check a client's reputation. If there are some red flags, then you have a chance to steer clear. It might be that a company like Penn Group actually would be good to work with. Perhaps the writers really are at fault. After all, one of the writers at least had done more than one project with the company. But we're not talking about proving something for court. Instead, you want to limit unnecessary risk when it is tied with catastrophic results. Otherwise you might find that you were playing the business version of Russian roulette.

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.

Simon & Schuster Takes Aim at AG

Last Friday I mentioned the Authors Guild warning about the new Simon & Schuster contract changing so that a book could effectively be "in print" forever, and how that has been creeping into publishing for years.

Early this week, S & S decided to fire back with an open letter "To Our Colleagues in the Author and Agent Community." The company made its central point in the first two graphs:

The Authors Guild has recently perpetrated serious misinformation regarding Simon & Schuster, our author contracts and our commitment to making our authors’ books available for sale. Unfortunately, these distortions were released by the Authors Guild without their having undertaken any effort to have a dialogue with Simon and Schuster on this topic.

In recent years, Simon & Schuster has accepted, at the request of some agencies, contract language that specifies a minimum level of activity for print on demand titles. Our experience with the current high quality and accessibility of print on demand titles indicates to us that such minimums are no longer necessary. Our position on reversions for active titles remains unchanged. As always, we are willing to have an open and forthright dialogue on this or any other topic.

Let's start taking this apart. The first graph is rhetoric - distortions without having trying to have dialog? That's a corporate way of saying that unfavorable news leaked out. Surely the company knows how professional writers would react. Did it seek to have "dialog" with the Authors Guild? Apparently not; it put the clause into contracts and, according to the AG, agents are reporting that S & S will not remove the passage. I guess talk is talk and printed contracts are something else.

Now for the second paragraph. Historically, the minimums were never to ensure a given quality of printing; they were to ensure a sufficient level of commitment on the part of the publisher. If you have to keep inventory, then you have an inducement to get it the hell out of your warehouse. And, again with the dialog - who cares if they won't negotiate the point.

Then the letter goes on to ask authors and agents to consider a number of points:

• Through print on demand technology, publishers now have the ability, for the first time in history, to actually fulfill the promise which is at the core of their contracts with authors – to keep the author’s book available for sale over the term of the license.

Oh, please. A publisher is interested in profit. The core of the contract was to ensure that the publisher made reasonable efforts in exploiting the rights it was granted so that both it and the author could make money. Keeping something available for purchase means nothing if you aren't promoting the item, unless it has so much self-renewing demand - like The Catcher in the Rye - that the publisher almost couldn't screw things up even if it wanted to. Also, virtually every book contract I've reviews as ASJA Contracts Committee chair was for the length of copyright. That means past when the author dies. Having an ebook or POD text in a database isn't promoting the book.


• We view this progress as a great opportunity to maximize the sales potential for slow moving titles, and some of the best news for authors and publishers in a long time. The potential benefit for all concerned in incremental income for the publishing partnership far outweighs any imaginary negatives purported by the Authors Guild.

This may be good news for publishers - get a bit more from that old dog in the virtual warehouse. But for authors? Not a chance. If there are dribs and drabs coming in through someone finding a book online, why not use POD yourself and get all the money coming in and not some small slice of royalty. Also note that many royalty clauses actually reduce the percentage for POD and ebook versions.


• We and others are investing heavily in digitization so that authors and publishers can reap the maximum benefit of publication over the long term. New technologies including print on demand will extend the life of a book far beyond what has been possible in the past.

Yes, they will extend the life, but again it's the publisher that will really benefit. Most books never earn out their advances, so as these sales continue of their own accord and with absolutely no help from the publisher, the writer will likely never see another penny.


• Contrary to the Authors Guild assertion, using technologies like print on demand is not about “squirreling away” rights, nor does it mean that “no copies are available to be ordered by traditional bookstores.” Print on demand is simply a means of manufacturing a book, making it widely available to retailers and consumers.

POD and ebooks are technologies, but they have an impact. They are considered "versions" of a book, and if your contract says that a title is in print so long as any version exists, that means the rights are perpetually theirs. The intent doesn't have to be focused on keeping the rights to make the effect that.


• Publishers must and will continue to invest in sales and marketing organizations that work on behalf of its books regardless of how they are manufactured.

A publisher works on PR and marketing - in a minimum way for the vast majority of titles and for only three months. After that, it's the author doing all the work. This claim of S&S is actually laughable if you have any experience in the industry. And then there are all the ways in which they claim to promote. Stores don't stock backlist books unless they move heavily, and the publishers are the whipping posts of the retailers. The sales team reviewing "inventory opportunities?" That means pushing new titles, not keeping old ones in place. Category promotions? How many of the backlist books actually appear?

Yes, POD and virtually warehousing provide important tools for publishers - and I think they should use them. But lets stick with some level of sales activity that they create. If they can't do that, then they're not doing their jobs, and they shouldn't keep the benefit of the rights that they licensed.

UPDATE: According to the Authors Guild, Simon & Schuster is now saying that it will negotiate the rights reversion clause "on a book-by-book basis."

Stalking the Wild Deal-Killer

For those who might not yet have run across the term, a deal-killer in the contract world is a condition that puts you at such potential disadvantage that you have walk away from the work.

Not all people have the same deal-killers. If a significant part of your business is reselling articles, you are more sensitive to extensive rights licensing than someone who doesn't bother reseller, or who is doing corporate work. One person might find pay on publication (where you don't get paid until the article runs) unacceptable while another will hold his or her nose because for other reasons a clip in a specific magazine could help increase a public profile.

But there are some terms that should be deal-breakers for all writers, because the danger so strongly outweighs the return. I ran into one this weekend on a book contract that sought not only indemnification if I breached a set of warranties, or promises, but if there was an allegation that, if proved true, would be a breach.

Now, the topic wasn't one that would cause a libel suit nor an action over having invaded someone's privacy. But there are a lot of kooks in the world, and the topic isn't new. Even though I know I wouldn't infringe someone's copyright, could I be that sure that no one would ever accuse me of doing so? Such unfounded claims are hardly unknown in the publishing world.

If I signed a contract with that particular phrase, I'd be liable for the economic damages, including legal fees, that the publisher would face - whether I had done something or not. And contrary to the opinions of many, and something I used to think myself, some major publishers actually do pursue reimbursement from writers over such things. As it stands now, I've let my agent know and we're waiting to hear back from the publishing house. Should they refuse to back down, I'll be walking away from the contract, even though it would be a handy amount of work to lock down.

Any time you look at a contract, you may be in a position where you feel that you need the income or the credit or the opportunity and that saying no is impossible. But realize that you might be in a position where saying yes should be unthinkable, once you realize what the cost could be. Read carefully; sometimes "No" is the best answer.

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.

Dealing With Take-It-Or-Leave-It Editors

The process of negotiation generally assumes give and take - that one party will give some on one point and the other will yield on another. But there are times that a person or entity is unwilling to bend at all. A writer recently wrote me (via questions I said I'd answer for The Renegade Writer blog) about such a situation, where the editor basically said, "I sympathize with your position, but if you don't give in, I'll find someone else because all our contributors sign this." The writer had felt beaten up in the process and wondered whether all the well-known writers in the title also capitulated.

The first step to better negotiation and business is knowing that there is no beating - only an irreconcilable difference of opinion. What you need for your business is the most important issue; something that works for one writer might not for the next. Or there may be a time that you are either receiving so much money or that you are in such desperate need for some paying work that you are willing to hold your nose and sign away the rights. That, too, can be a valid choice, presuming that you aren't giving in because you're afraid to ask for more.

Don't judge your needs by what others do. Many nationally-known writers sign bad contracts because they either don’t care, are foolish about business, or are scared to negotiate. There are also many whom editors perceive as bringing enough audience and value that they're willing to make changes.

That said, there are also plenty of editors who claim, “Why, no one has ever brought up that issue before!” Equine-generated fertilizer. Of course they have. The editor is probably hoping that you won’t know that.

Most reputable publishers will negotiate to some degree, because they realize that they need to. More established writers may have more advantage in negotiations because there is more of a drive to use their work. Also consider that if a publisher is so inflexible before you write word one, how reasonable will the edit process be?

The main attitude to shift is the idea that someone beat you up. Nope. You simply said no because the conditions were not acceptable to you. That’s called being responsible for your business. And you can only get to an irreconcilable point by speaking up and asking for what you want in the first place. Consider it a cheap price for greatly strengthening your business.

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.