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?