Google Fast Flip as the New News Stand

Google has released into beta a new service called Fast Flip, which provides an intriguing approach to making news media work on the web. I'll point you to my post on BNET Technology, which also has links to the service itself.

Has Entrepreneur Media Just Put Its Foot In It?

The news of the continuing editorial bloodbath at Entrepreneur Media, publisher of Entrepreneur Magazine, have been making extensive rounds of the media circles. Even after a round of lay-outs earlier this year, editorial folk have continued pulling their ripcords to parachute out at a time when media staff jobs are none too plentiful. And now a recent flare-up from an ex-employee elicited a response that seems like a bad business move and might even leave the publisher open for legal action.

Click here for the rest of the article - I think Entrepreneur may have responded to an ex-employee flame fest in a way that leaves it open to being sued.

Real Simple Essay Contest Aimed At Simple-Minded

Over the years, I've become used to seeing unreasonable contracts. But the terms for the The Second-Annual Life Lessons Contest by Real Simple Magazine are simply beyond belief. I could go through the whole thing, but one simple section says it all:

In addition, by entering, Entrant grants to Sponsor a nonexclusive, worldwide, royalty-free license to edit, publish, promote, and republish at any time in the future and otherwise use Entrant’s submitted essay, along with Entrant’s name, likeness, biographical information, and any other information provided by Entrant, in any and all media for possible editorial, promotional, or advertising purposes, without further permission, notice, or compensation (except where prohibited by law).

No need to wonder; you are reading it correctly. By virtue of entry, a writer gives unfettered use to the publisher to publish an essay as many times as it wants, with any edits that it desires, whether as editorial or for promotional or advertising purposes. The mag doesn't have to ask or even inform the writer and doesn't pay one penny. And that's for any entry, not a winning one.

Using the entry of the winner who gets $3,000? Sure, I can see that. Open use of anything that comes in the door? What the hell are they thinking? Oh, wait, I know: someone in management read Chris Anderson's book Free and misread that it's about the publisher giving away some free things. Or maybe the person in charge didn't bother to go past the title. Here's a clue to those at the top: If you want people to value what you do enough to pay, you'll find that you have value what others do for you enough to pay them. Otherwise, you're in no position to criticize anyone who thinks that "information wants to be free." It's one of those little truisms that make the world go 'round. Or is that too simple a concept for a mover and shaker?

Brant Pubs Under Fire For "Not Paying Anybody"

Brant Publications, which produces such titles as Interview and Art in America, has been the brunt of some major criticism by people who’ve claimed that they weren’t getting paid. Now there is corroboration from Glenn O’Brien, who, up until recently, was the company’s editorial director.

Here's the link.

Dan Baum on Magazine Proposals

The Renegade Writer has a good interview with former New Yorker writer Dan Baum. Much of the talk is what it takes to write for the bigger name magazines,and if you want to get into the likes of Wired, Rolling Stone, or Playboy, it's worth the read. So are some actual proposals that Baum used, both successfully and not.

I would take some of the things he says with a grain of salt, and not just because the New Yorker wouldn't renew his contract. In the proposal about a Mexican government official, he noted that the New Yorker never responds on ideas it doesn't like and he mentioned John Bennet, who was an editor there for years. However, when Bennet was on a panel I moderated on narrative nonfiction, he mentioned that any editor should tell you whether an idea was potentially interesting or not within two weeks, and that if they didn't, the writer should touch base. Personally, I had received a rejection or two from Bennet, so know that the New Yorker will say no.

Second, he says that length and detail are key to get assignments. But I remember getting an assignment from the New York Times Magazine from a query that ran a few graphs in an email. I think the lesson is get in the detail that will grab the editor, but that amount can vary.

Another interesting point is that he talks about a 5,000-word LA Times assignment paying $5K and being work for two to three weeks. If it's closer to three, suddenly those big, time-consuming assignments may not sound quite so appealing, unless they pay significantly better than a buck a word. Clearly some of these big name magazines pay a lot more, but you also have to consider how many you can get in a year. Baum says that he can't get work these days. The lesson is that planning a writing business is more complex than "I'll write for the biggies" or "I do big-name consumer" and probably requires more project diversity than ever before.

Are Print Ads More Valuable Than Online? It Depends

Given the number of "studies" I've seen that claim to show the "superiority" of print over online, I've gotten a sense of desperation on the part of publishers. (And given their financial results and dropping ad revenue, no wonder.) The latest has some interesting data:

Among Web users, nearly two-thirds (63%) of banner ads were not seen. Respondents' eyes "passed over" 37% of the Internet ads and "stopped" on slightly less than a third, McPheters & Co. found.

In contrast to online ads, TV and magazine ads generated a strong propensity to be seen and recalled. Full-page, four-color magazine ads were determined to have 83% of the value of a 30-second television commercial, while a typical Internet banner ad has 16% of the value.

Here are the major findings from the press release issued by the market research firm that undertook the study:

• Within a half hour, magazines effectively delivered more than twice the number of ad impressions as TV and more than 6 times those delivered online.
  
• Though TV doesn't deliver as many ads per half hour as do magazines, net recall of TV ads was almost twice that of magazine ads; magazines in turn had ad recall almost three times that of Internet banner ads.


• 85% of Internet ads served appeared on-screen and could be identified by brand.


• Among web users, 63% of banner ads were not seen. Respondents' eyes passed over 37% of the Internet ads and stopped on slightly less than a third.


• For Internet ads, almost all net recall could be attributed to ads that were seen.


• Internet video ads appeared much less frequently than banner ads, and their exposure skewed heavily towards young men. When they did appear they were twice as likely to be seen as banner ads.

In my experience I definitely avoid looking at banner ads. But there are some enormous suppositions and biases here:

• The report does mention online vehicles other than banner ads, but only mentions video ads as appearing less frequently than banner ads and skewing heavily toward young men. But that is one of the most desired demographics for marketers. And, apparently, it didn't seem to measure text ads, which are surely the most prevelant form of online marketing today.


• Recalling an ad is not necessarily the same as ad effectiveness. Consider the famous example of the hilarious Alka Seltzer ad series from the sixties. They had huge recall, but the company dropped them because no one remembered the product, just the humor. Also, if you find an ad irritating, is there any transference of that feeling toward the manufacturer?


• Although it may be in the study, I don't see any mention of the intent of the ad. Was it meant to sell product? Recall doesn't show whether people buy, or even if they become more inclined to favor the mentioned brand.


• Where is the audience spending its time? Even if magazine and television ads are more effective in a more extensive way than recall, is that the medium that consumers prefer to consume? If they read news and watch video online, then placing ads in print and on television starts reaching a smaller audience.


• That last point has another implication: cost. Print and television ads cost more to run than online ads. So how much does it cost to acquire and maintain a customer? That must be part of the equation, particularly when budgets are constrained.

And now for the really big point, in my opinion. Conde Nast and CBS Vision (described by CBS as a new research initiative to explore changes and opportunities in the media marketplace) sponsored the study. I've generally found that sponsored studies almost always mean that the results are only released when they support the underlying goals of the corporate sponsors. For example, can you imagine a drug company backing a study showing that a cheap alternative to an expensive prescription medicine was superior?

But publishers and broadcasters all claim to be interested in online as a medium. (Disclosure: I cover high tech for BNET, which is owned by CBS Interactive.) But this clearly delivers the impression that the sponsors are interested in having older media -- which deliver more ad revenue and profit -- shown to be superior to online. In other words, it's the old dog at the media companies trying to kill off the upstart medium, with the Internet still a business toddler compared to print and broadcast. How are the media companies ever going to make the transition they say is coming if they do everything in their power to defeat it? This is why tech companies like Google and Amazon, which are big in online advertising and media, are likely to be the real winners in the media wars. They aren't spending significant resources and time trying to debunk the very businesses they say they are anxious to establish.

Old Media Companies Try to Sabotage New Media Efforts

I had posted something on my BizBlast blog that I thought might be of interest to freelance writers. Although it nominally addresses a recent study of the effectiveness of different advertising media (online, print, television), it's really about the resistance that so-called old media companies have to the new formats, suggesting that many of the attempts to convert print properties to Web will fail because the publishers actually want them to fail -- subconsciously, perhaps, but still that's what they seem to desire if you look at what they do.

Warnings on Outside Magazine and Web Site

Mediabistro's FishbowlNY has a story about the alleged bad financial condition of Outside. According to the story, not only have people been laid off, but the magazine has taken months to pay freelancers.

To be fair, and the article does mention this, Outside has long had the reputation of being slow to pay. According to the article, as well as contributors to the magazine that I've spoken with over the years when reviewing contracts and counseling on negotiating, that includes expense reimbursement, which can be painful because a writer having to travel for research will generally front the money and get it afterwards. (Hint, if you're still planning to pitch Outside, consider negotiating for front money on expenses, with any extra something you will either reimburse or that will be counted against a fee.)Keyes assured FBNY that Outside is in good financial standing. "I feel really good about our longterm viability," he said. "This April's issue is 140 pages, while last year's was 136."

Some people we spoke with question the continued publication of Go earlier this year, especially given the battered market. (Best Life, a similarly themed book, folded earlier this March.) Ironically, Go is reportedly paying its writers more quickly than parent Outside -- although still months late -- but many within the company wonder why the money-hemorrhaging magazine still exists.

It may be that there are no problems financially, but then you have an even thornier question for a freelancer: If they have enough money, why do they think so little of their writers that they are unwilling to pay invoices in a timely fashion? It suggests an enormous degree of disrespect, and if they're going to act that way over money, how many other needless hoops are you likely to be asked to leap through? If they don't have enough money, why trust them? Woudln't that make them liars? In fact, if a magazine says it's going to pay in a given timeframe and consistently doesn't, for whatever reason, isn't it already lying?

Gawker's Slowest Payers List

The information is not scientifically gleaned, but it's still worthwhile to look at
Gawker's list of the ten worst late paying offenders in print. This is just another example of why it's worth doing a little research and digging before approaching a new client. Who needs the headache of waiting for -- get this -- two years for a lousy $40. You'll have to check the link to find the name of the corporate miscreant.

Moody's Warns on Media Companies

Debt rating agency Moody's has come out with a "bottom rung" list of the 283 companies that it thinks are most likely to default on their debts in the coming year. David Weir, a colleague of mine on BNET, covers the media and put together the media companies on the bottom rung list. I went through and found the ones more likely to be using writers (I'm including links so you can check to see if they own any of your outlets):

• Cumulus Media (operates radio stations in mid-sized and smaller markets)


• Freedom Communications (many daily and weekly newspapers and eight television stations)


• GateHouse Media (big newspaper publisher of dailies, free and paid weeklies, and shoppers)


• MediaNews Group (operates 54 dailies in 11 states, a television station in Alaska, and radio stations in Texas)


• Morris Publishing Group (13 dailies, 28 weeklies, four city magazines in Georgia and Florida, and Skirt! magazine)


• Radio One (various media focused on African-American audiences, including radio stations, a television cable channel, GIANT magazine, and online/interactive media)


• The Reader's Digest Association (besides the obvious, many magazines, online properties, and book publishing to boot)


• Spanish Broadcasting System (radio stations, television programming, and online)


• Univision Communications (Spanish-language television, radio, and interactive media)

As far back as I can remember, this sort of broad warning from a rating agency is unprecedented. Moody's was one of the companies smacked about for not having given a more honest appraisal of the various collateralized debt obligations (CDOs) that have become a financial plague.

Continuing the bad news, if you write for newspapers, you need to click on that link to David's piece, because he also has Time's deathwatch list of ten major metropolitan dailies, including the Boston Globe and the Miami Herald.

Doing work for a company in dire financial straits is a gamble. The company could become increasingly slow in paying, might go into bankruptcy (tying up any invoice you have outstanding), or might even simply go out of business. In writing for such a company, you have to go in with your eyes open and treat the income as "extra," and not something critical to keeping food in the fridge and a roof over your head.

Nine Sources of Trade Magazine Lists

For those who don't realize it, trade magazines can be a great regular part of a freelancer's income. They always need copy and many pay reasonable amounts for articles. It is best to have knowledge of the industry in question, or at least to be able to show your fit for a particular topic pitch. Here are some resources for finding trade magazines in given industries -- all found in the space of minutes by doing some straightforward web searches:

• TradePub.com -- The site provides subscription services for business-to-business (b-to-b) publications. But it also gives you the name of publications and lists them by industry, so it's a great research tool.
• Free Trade Magazine Source -- This is another subscription stop.
• Yahoo's Media Directory -- Yahoo's directory, or categorization of links by topic, is one of the best. You can look by topic and see what publications are listed. It's not exhaustive, and you'll find consumer-targeted titles as well as b-to-b, but still useful. You can even go right to the trade magazine section of the directory.
• TechExpo Directory -- These are touted as science and technology trades, but there also seem to be more general industry titles as well.
• Amazon's Trade Magazine Listings -- Amazon sells magazine subscriptions and has an entire category of professional and trade titles. On the left you'll see links by topics. Not all the topics have associated titles, but many do.
• About.com
-- The link in this case takes you to a Google search page that looks for the term "trade magazines" on About.com. It won't all be a fit, but many of the entries will be lists of trade magazines put together by people who cover various topics on About.

• HighBeam Research -- You may hate how they try to sell your articles when you're getting nada for it, so make them pay in a different way by turning their lists of trade journals into a marketing mine.
• Encyclopedia.com -- For some reason, the reference site, which republishes many trade magazine articles, has them listed in reverse alphabetical order.
• Magazines.com -- A site for ordering magazines, you can browse by title or by category.

State of Fashion Magazines

Magazines have to sell ads if they're to have money for printing, mailing, editing ... and freelance budgets. Women's Wear Daily has great coverage of media in certain niches, including fashion, lifestyle, teens, and men. Here's a recent article with an analysis of who's up, who's down, and who's on the way out. For example, More lost 30 percent of its ads; O the Oprah Magazine is down 14 percent, as is Esquire. It's a good idea to see who's hanging in and who might be going under for the second or third time.

Emirates Airline Dumps Its Magazine

This isn't one of the big markets in the US, but it's worth noting that Emirates Airline will no longer carry its paper in-flight magazines and entertainment guides. Instead it will send "similar content" into its in-flight entertainment system. They figure that they'll drop close to 4.5 pounds per passenger this way. It's part of the cost cutting measures the airline is taking because of high fuel prices. (Any irony that this happens first in the Middle East?)

I'm not sure that it will be so long before other carriers consider the same sort of tactic; they're already charging for checked baggage. Also, the people who produce the in-flight digital material are probably different from those that create the printed magazines. Between these two factors, if you count on airline magazines for a significant amount of your business, it might be smart to branch out as quickly as possible and find other clients so you don't get caught in a change, should it happen. And if it doesn't, the worst thing is that you end up with more clients.

Is Media That Delivers a Market That Isn't?

I often hear about freelance woes with various publications, and on rare occassions I do some investigation into them. That just happened today when Lynne Meredith Schreiber posted on a writers' board about a problem she was having with getting a payment from Estates West, which is published by Media That Delivers. She is not the only writer alleging problems with the company, and back in February WritersWeekly had a something about the company owing a writer $2000. Lynne has given me permission to use her name and mention the details. Here is an outline of the saga as she relates it:

1. Lynne wrote a "huge story" and submitted it on January 2. "[T]he editor loved it. They had said they paid on publication and the story was worth $975 - but the editor said she'd try to issue payment early."


2. In March she got a PDF of the story but no check. By April she began to email the editor "incessently" and was referred to the publisher, whom she quotes as saying, "It's a bad economy. A lot of our creditors are not paying us so we can't pay you just yet." She says that the publisher, Mike Dee, offered to send "less than half up front and then the rest when he could. He did not."


3. She had a lawyer contact the company, which sent a check for $100. The lawyer returned the check as inadequate and was told it was all the company could afford for now and that it wanted to set up a payment plan.

I wrote Mike Dee the following:

I write a reasonably well-read blog on the freelance business. I've been hearing that writers are being asked to wait very long periods for payment from your company, and so wanted to ask you about this before I put something on my blog.

I got a response today, as well, from Hayley Gudat, "Director of Estates West & Custom Publications Media That Deelivers, Inc." Here is the response:

Thanks for contacting us about your blog before making any comments about Media That Deelivers. While we cannot stop you from posting about us, we of course hope you will not, simply because we have always maintained excellent relationships with our freelancers, and in most cases have been using the same writers, photographers and stylists for years, which we believe is testiment to our reliability as a publisher of magazines. We have been in business over a decade and have probably the best reputation in our state, be it for our editorial content or the way we treat the people we work with.

In some situations, freelance payment can be late, but never, ever has an invoice gone unpaid. We try at all times to pay any freelancer on time, and in most cases we do, though of course there will be occurances of slight backlogs. We always communicate with our writers, should a payment be late, and from my experiences they appreciate the dialog and we have not had any problems to date. I hope this helps you. Please contact me if you have any other concerns or questions.

The related story and the response don't seem reconcilable to me, but perhaps there is something that I am not getting. At least what I'm missing is not a check, which is an unreasonable situation for any freelance writer to be in.

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.

Time to Debut Magazine Mix and Match

Time is finally going to launch Maghound.com, which, as Folio describes, is its "Netflix-like" service:

Maghound.com allows consumers to choose titles from a variety of publishers for a mix-and-match “subscriptions” where they pay one monthly fee and have the ability to switch titles at any time. Unlike traditional subscriptions, members aren’t locked in their memberships and can cancel whenever they wish. [President of Maghound Enterprises Dave] Ventresca says that Maghound.com offers “flexibility, choice, control and personalization.”

I think this has to be a relatively scary thing for publishers to get into. Until now, people I know would make a calculation regarding a magazine subscription: If you were going to spend more on individual issues than you would on the best discounted price you could find for a subscription, you went for the subscription.

The fear? That model pushes people into getting more subscriptions than they may want. Publishers like subscriptions, because they help guarantee that much more paid circulation, and that means being able to charge advertisers more.

But with Maghound, people can swap subscriptions at any time, and it doesn't seem to cost too much more than the "$12 for 12 months" approach, except you don't get locked in. So I'm betting there are going to be magazines that start to see their subscriptions numbers slip. That will translate into even more uncertainty at publications, which could drive even loonier and more desperate attempts to "attract" readers - a scary thought, because it usually involves some complex wishful thinking and not coming up with something that you know people want, even if they don't know that they want it. That would translate into stranger assignments and more hoop-jumping. You can bet I'll go to the site to sign up - and to see which magazines I might think of avoiding.

Scientific Journal Gets Hoaxed

I actually ran this on my photography blog yesterday, but thought that readers of this blog might find it interesting: a scientific journal ran a piece about Thomas Edison supposedly being involved in the murder of a rival, even though there are enough red flags in the text to put you in the running of the bulls in Pamplona. The object lesson is that if a story smells funny, maybe you should take a deeper look before becoming the likely victim of a prank.

Contract Review: American Express Publishing

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

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

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

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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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

Another User-Generated Magazine Issue Experiment

Recently Budget Travel undertook an all user-generated issue, in which it paid readers to write pieces that needed some heavy editing. Now Time Inc.'s This Old House became Your Old House for an issue, according to a story in Folio. All the photos, DIY projects, and tips in the June issue came from readers:

Executive editor Kathryn Keller says the magazine received thousands of e-mails, letters, photos and projects since editor Scott Omelianuk's first call for submissions in his December editor's letter.

In addition to the letter, the magazine created a dedicated microsite for readers to upload materials and then called for submissions at the end of magazine stories, in e-mail blasts and at the end of the This Old House television show.

Ads were up over the same issue the previous year, but so were expenses. Interestingly, the big resource sink was apparently not the editing, but building and managing the associated web site. This Old House is currently thinking of doing this on an annual basis. There's even a company that apparently is finding a way to make this pay in the long run:

8020 Publishing, which formed in June 2006, produces its two reader-generated titles Everywhere and JPG with a total staff of 19, and may be profitable by next year. The company is reportedly considering similar titles for foods and car enthusiasts, if the demand among its online community reaches critical mass.

Warning: Doubledown Media

A number of writers are complaining about difficulties getting paid by Doubledown Media, which, ironically, publishes magazines for wealthy readers. Reports include claims of multiple promises of payments that never come through. Take it with a grain of salt, of course, because I cannot independently verify these claims. However, I know some of the sources as usually highly reliable.

Contract Review: FenderBender

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

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


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


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


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


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


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


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


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


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

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

New Magazine Launches - Up and Down at the Same Time

Samir Husni, "Mr. Magazine" and chair of the journalism department of the University of Mississippi, watches the magazine market closely. In a relatively recent blog post, he noted that new magazines starts in the first quarter of 2008 were five titles more than the same period in 2007, but only 41 came out with the intention of at least 4-times-a-year publishing, versus 50 in 2007 and 72 in 2006:

So what does this mixed bag of numbers mean? Not much. Since I have started tracking new magazine launches, I have witnessed a two or three years’ declines after a very healthy and busy year. 2005 was a very healthy year. 1013 new magazines were launched. The decline started in 2006. We are in our third year of decline. In 2006 we have seen 901 new launches, the number dropped to 715 last year, and if the trend of the previous years continues, we will see another drop again this year before the numbers bounce back. Call it market correction if you please, but definitely it is NOT a sign that print is on its way out. History will tell us otherwise. So enjoy this quarter’s crop and look forward to more titles to come next month.

I must agree and disagree. On one hand, no, magazines aren't going to disappear overnight. However, even counting downward economic pressure, this is hardly something to make you feel comfortable. You have to find where the magazines are still strong and forget about any old mainstay that is being hit badly.

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.

Magazine Ad Trends: Products Advertised Equals Topics Covered

There's an old trick in the magazine business: if you want advertisers, then cover them editorially. I don't mean the ethically-challenged tit for tat we've all seen some publishers indulge. In this case, there's a more natural and obvious connection. If you never mention consumer electronics in your publication, then it becomes harder for ad salespeople to interest consumer electronics companies to advertise:

Ad salesperson: "This is really a great publication for you to reach your customers."

Corporate ad buyer: "But we sell nutritional supplements for older people and you have a magazine for kids. What interest are they going to have in geriatric products?"

Ad salesperson: "Ah, but one day they're going to be older, and think of all the mind share you would have built!"

Tough to make the sale if you can't show the natural interest. That's why you should take a look at this article from Crain's New York Business, which discusses the general state of magazine ads and which categories are up and down in the first quarter of this year as compared to the same time last year:

For the entire industry, rate-card-reported advertising revenue, which does not reflect discounting, came in at $5.2 billion, down 1.2% from the previous year. Ad pages—generally considered the more reliable industry bell weather—fell 6.4%, to 49,167.

The top advertising categories that actually showed growth were retail; transportation, hotels and resorts; financial and real estate; and food. "The category that includes the likes of Kraft’s macaroni and cheese and Lay’s potato chips almost single-handedly held up the magazine industry in the first quarter, according to numbers released Monday by the Publishers Information Bureau of the Magazine Publishers of America."

The categories getting hammered were led by automotive, which is no surprise in the combination of economic downturn and tightening credit market. It dropped 17 percent. Home furnishings and supplies lost 12%. The reporting is based on numbers from Publishers Information Bureau of the Magazine Publishers of America.

You might also check the numbers for how individual magazine titles did. Some of the big winners were All You, Backpacker, Cookie, Ducks Unlimited, Every Day with Rachel Ray, Family Fun, Field and Stream, Medizine Healthy Living, OK Weekly, Quick and Simple, ReadyMade, Remedy, Ser Padres, Transworld Snowboarding, Womens Health, Wondertime, and Relish.

Some of the big losers: ABA Journal, Auto Week, Boating, Businessweek, Coastal Living, Cycle World, Endless Vacation, Entertainment Weekly, Fortune Small Business, Golf for Women, Gourmet, Hemispheres, Kiplingers Personal Finance, Motorboating, National Journal, Reader's Digest, Rolling Stone, Scientific American, Tennis, US News & World Report, and the Los Angeles Times Magazine.

A caveat: these are all based on rate cards. But discounting is common, and there's no telling for sure whether the magazines that had gone up might have effectively dropped their price. (However, generally when you're selling a lot of ads, you don't have to drop rates so much.)

B&N Offers Web Site with Free How-To

How-to book authors, take note: Barnes & Noble has a new web site called Quamut.com that offers free advice and help to users. They commission pieces, have them edited and fact-checked, and add photos and drawings to make them clearer:

“Quamut.com positions Barnes & Noble as a leader in digital how-to publishing,” said Dan Weiss, publisher and managing director of Quamut.com. The company simultaneously publishes all content in two formats: as HTML content and as downloadable PDFs. In some cases, Weiss said, Quamut guides are also available as a four-to-six page laminated printed charts, available for purchase at Barnes & Noble stores and BN.com.

The business is supported through three revenue streams: advertising through display ads and Google AdSense, the sale of full-color PDFs ($2.95), and the sale of laminated printed charts ($5.95 each). Many ads on the site are for books related to the subject at hand; for instance, the guide to stretching features an ad for books about stretching, with the line “Learn more with these titles from Barnes & Noble.”

This can't be good news for the many authors who write for the how-to series books. Even if the pieces are short (the downloadable PDFs generally run from 2 to 8 pages, many people buy how-to books to learn something specific. Break it out and you suddenly don't need the entire book - and I'd bet that the Quamot authors aren't getting royalties on either advertising or downloads. Or maybe I'm getting it wrong, and the free material online does just the opposite - sets up an interest in buying the book. B&N advertising full titles on the pages with the how-to content.

Contract Review: Delight

Someone sent this contract for Delight, published by Idea Outpost, for both my amusement and bemusement. You'll see why in a moment. Remember, I'm not a lawyer, this isn't legal advice, and I'd never personally assume that contract terms are immutable until proven otherwise:

• Receitals This sort of thing is generally straightforward, but I thought it was worth noting that the publisher works "in print and in electronic form on the World Wide Web and on DVDs and CDROMs" to create lifestyles and television programming magazines.


• Clause 1 The writer is an independent contractor and not an agent, employee, or partner of the publisher. Fair enough.


• Clause 2 Everything is work made for hire or, if it doesn't qualify, you have to sign over copyright. But the range of things they want to own is pretty scary: "newspaper articles, stories, reports, memoranda, drawings, photographs, ideas, suggestions,
  themes, plots, characterizations, dialogue, titles, designs and other work." Titles? Ideas? Suggestions? Oh, wait - I have a suggestion...


• Clause 3 A separte paper explains the topic - understood.


• Clause 4 Think having ideas be someone else's property is bad enough? "All Work is submitted on 'spec' and will only be remunerated upon acceptance by Publisher." You might wonder how different that is from most contracts that say work has to be accepted. As I repeatedly say, I'm no lawyer, but it seems to me that when you have a contract requiring acceptance, there is often an understanding that acceptance is something that must actively be denied, because the article didn't meet expectations. But with spec, things more become a matter of whim, as normally a publisher has no obligation toward spec work at all, and there isn't a legal contract. Maybe a court would say that these people are redefining spec, but it's an uncomfortable addition. Here's another: pay is 60 days after invoicing, and you don't get to send an invoice until the editor in chief asks for it. No indication of how long the EIC can delay in deciding if your work is accepted.


• Clause 5 There is a "time is of the essence" term, which, as they explicitly state, means that if you don't finish "in a timely manner," they can cancel the agreement. Timely would mean that they give you a date and you miss it. No provision for working out a new deadline because of problems.


• Clause 6 Here are the warranties, and some of them are a bit odd. For example, "Publisher shall not be required to make payments to any third party in connection with Publisher's use or exploitation of the Work or any portion thereof." That's way too broad, as you have no control over how they use what you write. What if they do something that gets them sued, like totally rewriting your piece and adding information you didn't provide? You're essentially saying that no matter what they do, they can't be forced into paying anyone else money. They'd probably claim that they don't want to pay for something you include in your article, but the wording is more far reaching than that. You must additionally promise that the "Work does not and will not infringe upon or violate any intellectual property right or other right of any person or entity." But this extends far beyond copyright alone.


• Clause 7 This reiterates that they can do anything with what you write at all, and use it in any medium.


• Clause 8 You have to "conform to general readability standards in the computer and high technology field" (not sure that's necessarily all that desirable, given that this would include every bad user manual in existence) and you must turn in something in Microsoft Word. (Forget the fact that Word can read text and RTF, or rich text format, files.) Now check this: "The Writer acknowledges and represents if the Work fails to conform to the general readability standards of the computer and high technology field, Publisher has the sole and unilateral right to refuse to compensate the Writer and/or publish any said Work." And/or publish? Does this mean that they could go ahead and publish anyway and still refuse to pay? Sure reads that way.


• Clause 9 If you breach "any term and condition" of the agreement, they can cancel the contract. But who referees if there really was a breach? What if it's a minor breach? Why not time to fix a breach if possible, a very common inclusion in contracts?


• Clause 10 This is pretty straightforward in saying that you're not an employee and are responsible for your own taxes, et. al.


• Clause 11 If they need you to fill out paperwork so they can own what you write, you have to.


• Clause 12 This is the entire contract, so no matter what an editor tells you, it all applies. It's interpreted under Wisconsin law, but you are not required to take up legal action there.


• Clause 13 "Writer agrees to hold Publisher harmless from and against all damages, losses, costs, expenses (including reasonable attorney's fees and costs) which Publisher may suffer or incur by reason of the breach of any of the representations, warranties or agreements made herein." I'm including the whole of this clause because, to my eyes at least, it doesn't really make sense. Holding the publisher harmless would typically mean that you don't blame the publisher if specific things happen. But how do you hold a publisher harmless from and against damages which the publisher might suffer? I think they wanted an indemnification clause.

Contract Review: 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.

Long Story of a Writers' Mag

No big epiphany here, but thought that people might find an AP article on Writers' Digest interesting, as it goes through the history of the publication.

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.

Contract Review: CurtCo - San Diego Magazine

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

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


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


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


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


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


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


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


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

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

Contract Review: Luxe (Sandow Media)

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

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


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


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


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


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


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


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


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


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


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

Ziff Davis Media Files for Bankruptcy

The Associated Press reports that technology publisher Ziff Davis Media filed for bankruptcy yesterday. It's a sign of where some areas of publishing are headed - into the financial toilet. ZD has shown shaky finances over the last few years, and pay has been getting tighter. Obviously, it was for a reason:

New York-based Ziff Davis said in a court filing that it had about $500 million in liabilities and $313 million worth of assets, as of the end of December. It filed for Chapter 11 protection to restructure debt that had become burdensome.

Senior creditors - in other words, people other than writers, photographers, and photographers - are writing off a big chunk of the $225 million they are owed and getting at least 88.8 percent of the company's common stock as a result.

As for the more junior creditors owed a collective $275 million, the company will use the courts to resolve what they owe, and the courts have set aside $24.5 million to fund ongoing operations during the case and after it concludes.

Condolences to anyone who's been doing business with them. If you have invoices outstanding, I'd *strongly* suggest that you read up on bankruptcy, find out where they've filed, and start the necessary paperwork right away. If you are expecting pay, know that the courts will keep them from sending checks to anyone. Going forward, while the court has set aside operating capital, be sure that you can and will be paid, and know that there may be some supervisory authority that will have to review and authorize payments.

You can get burnt badly under the right (or wrong) circumstances, so if ZD is a big client, it would be wise to diversify immediately.

Update

I've heard through the grapevine that Ziff Davis Enterprise is not part of Ziff Davis Publishing and is, instead, owned by a venture capital group. If you're working for ZDE, you're not in the same boat.

Review: Real Simple Freelance Writer Agreement

A fairly recent copy of the Real Simple agreement hit my inbox. Here's my review of it - and please remember that I'm not a lawyer and that this isn't legal advice:

1. The first section mentions the working title of the article and an approximate assigned length. Unfortunately, there is no detailed description of what the article should cover. You should do that via a confirmation email or other written form that provides evidence of the details and approach. Also, it gives an approximate assigned length. I don't think that is anything to get too concerned over so long as any requests for additional material aren't too extensive. But if they are, remember that this is not a contract offering an open ended amount of writing from you for a fixed price from them.


2. This clause specifies the fee if accepted. There doesn't seem to be a definition anywhere in the contract of what constitutes acceptance, nor of how long they can wait before they do accept it. It would be best to add something that spells these out. Also, there is a kill fee, but the clause doesn't explicitly say that the writer retains all rights, and no rights are transferred or licensed, if the article is rejected and a kill fee paid. Although I can't see a court saying that the publisher retains any rights, as it is rejecting the piece, it would be good to have the non-transfer of rights explicitly stated, so that there could never be a question.


3. This is a work made for hire contract, so you would lose all rights to the article if they accept it. That means you cannot, without their permission, legally resell the article or even post it on your web site.


4. There are no real restrictions on how often or to what extent they can have you make changes or do fact checking, as there isn't even a "reasonable" limitation on what they ask of you. That means if they typically run people through hoops, you'll be a-jumpin'.


5. They don't have to publish the article, even if they accept it. If they don't publish it but pay you the full amount, you don't get the rights back.


6. They can use your name, image, and biographical data not just to promote the article, but in advertising and in promoting the magazine. Practically speaking, this probably isn't going to be a problem.


7. This clause states that you're not an employee and shouldn't expect any benefits.


8. If you want expenses reimbursed, you have to get the magazine to pre-approve them, and you'll need to submit a "written accounting in a form acceptable to" the magazine.


9. You work at your own place, but will "consult with the editors at their office (or by telephone or fax) at their reasonable request." Notice what is missing? Email. I'm certain that is a simple oversight, but one their lawyers really should correct.


10. Now we get into something sticky. The warranties in this clause ask for the usual - no copyright infringement, no defamation, no infringement of third party rights, and so on. Other than the copyright infringement, I'd strongly suggest adding "knowingly" and making sure that these are all understood under US law. Unlike many contracts, there is no clause that states which laws are used to interpret the contract. That leaves open the possibility of being caught under laws that you don't foresee. For example, someone could sue you in the UK or Canada for libel, where the courts strongly favor plaintiffs, and not the writers as is true in the US. Furthermore, there is an indemnification clause in which you are supposed to indemnify Time Inc. for a breach of the warranties or representations, or for "an allegation which if true would constitute a breach." That, for me, is one of the deal breaker phrases, because even if you haven't done a thing, should someone accuse you, you're on the indemnification hook.

Did Maxim Review CD Without Listening?

Apparently Maxim rated a CD without listening to the entire album - and it's not even clear how much, if anything, the reviewer listened to. Here's something on one of my other blogs.

Reed Business Information Goes on Sales Block

Variety (owned by Reed Business Information) is reporting that Reed Elsevier is selling Reed Business, a publisher/producer of hundreds of properties, with the US list, as the link will show, being extensive by itself. If you write for trades, here are some topic categories that let you see some of the breadth:

• building & construction


• electronics


• gifts & furnishings


• hospitality


• manufacturing


• supply chain


• media


• entertainment


• publishing


• television


• printing

This is a huge deal and will affect many writers who work for trade publications.

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.

Expect Shakeups at Time Warner

Jeff Bewkes, Time Warner's new CEO, is already making noise about cutting costs and restructuring the business, according to the Wall Street Journal. Because that includes Time Inc., you can expect that the changes going on will affect all parts of the company, including any clients you have there. Here are some of the likely actions so far:

• Separate AOL's operations from the rest of the company, for a potential sale.


• Consider reducing the percentage of ownership of Time Warner Cable.


• Possibly merge New Line Cinema with Warner Bros.


• Headquarter cost cuts of 15 percent.


• Focusing on digital opportunities for the television and publishing businesses.

What's driving these changes is stock performance:

Still, investors applauded his approach. In 4 p.m. New York Stock Exchange composite trading, Time Warner shares rose 31 cents, or 2%, to $15.71. Time Warner's shares have sunk this year to levels not seen since 2003, when the company was still reeling from its disastrous AOL merger.

On Wal-Mart Dropping 1,000 Magazine Titles

I think the story of Wal-Mart cutting a thousand magazine titles off its list is probably more complicated than it seems on the surface. Wal-Mart is driven by operational efficiency. Part of that means carrying products that really move. News stand sales are often the opposite of efficiency - think 70 to 85 percent or more being returned because no one buys them. Plus, the article talks about the list having magazines that hadn't existed in a significant period of time.

It sounds to me like they are purging lists of things they haven't/didn't want to carry for a while, even with some major titles being taken off. I'd also wonder if this is a step toward something else that would be pretty significant: taking control of their own magazine distribution, rather than doing the "usual" thing of allowing distributors to populate the shelves as they please.

Finally, dropping 1,000 magazines? That alone is a clue, to me, at least, that something is odd. I've been in some large Wal-Marts, and there's simply not enough shelf room to drop 1,000 magazines and have anything left. Maybe a lot of the titles were distributed regionally, or had been brought in and one time and then not a second. In fact, I just saw something from a publishing consultant (sorry, no free online link) that suggests a) the magazines left in Wal-Marts will easily account for over 95% of their sales, and b) the number of magazines actually on display at a Wal-Mart at any one time is closer to 300. Many of the cut titles are only sold in certain geographic areas or during particular times of the year. Finally, some of the magazines - like the Economist or the New Yorker - are aimed at a different demographic than Wal-Mart's customers.

So, when Wal-Mart trims magazine list, it's significant news for the publishing industry. But the real significance - taking more control over distribution - is yet to be seen.

When Were They Going to Tell?

Every now and then I find myself getting angry because for years publishers said, "We have to go cheap on the web because we're not making money yet. When we do, we can pay more. Hope you understand." But consider what many signs are telling you. Rupert Murdoch is someone disliked by many journalists, and he has his own agendas, but I've never heard anyone call him a stupid businessman. He's planning to make the Wall Street Journal free online. Why? Because he'll make more than the revenue from the estimated 1 million subscribers - which, given the subscription rates, has got to be at least $50 million a year.

Read that number again. And he expects to get far bigger audiences to make far more money.

When I wrote about questions I had on newspaper readership, it was clear from the numbers in the Newspaper Association of America-sponsored report I cited that newspapers are getting millions of visitors a month. I still think that in the long run they are not going to be monetarily valuable clients for freelancers, but how much are each of those people worth in annual advertising revenue?

And if you look at this Mediaweek article, Time Inc. apparently has been doing very well on the web:

John Squires, executive vp, Time Inc., said that while he’d like the company’s sites to “crawl up in terms of scale,” he’s happy with their rank in engagement and revenue per user. Speaking today at a Time Inc. Digital Showcase, he noted that according to Time Inc.’s own ranking, the company’s sites come in 15th among media companies in terms of time spent per visitor.

Happy with revenue per user? To me, that generally means that someone is making a good amount of money. Newspapers and magazines see pretty serious revenue from the web. So when were the publishers going to admit it to the writers?

Never. They don't want to pay more. They're very happy to have driven down the cost of content, because that means they have higher margins, which are the difference between what products and services sell for, and what they cost to produce or acquire. And I suspect they're not telling the editors, either. Why? Because right now the editors for online work are also making less than their print colleagues - which is also fine with the publishers, because that pushes margins up even higher.

That's what gets me angry - the con game. Just when were writers supposed to be able to redeem the promise of more pay for concessions made? Again, the answer is one word: never. I do understand the publishers, but don't like what I often hear, and I'm not going to buy the line anymore.

More Market News for Magazines and Newspapers

Here are some additional views of the journalistic markets. When you want to get an idea of what might be happening in the publishing world, it's good to listen to media buyers. They are the ones who decide where to put ad dollars, which drives the size and very existence of publications. As with most of us, their perceptions become their own biases, because they'll make decisions based on what they think is happening.

So take a look at this Media Life article, reporting on its own survey of media buyers. In particular, look after the discussion of House & Garden to the categories of magazines perceived as most in danger, where some titles might end up closing:

• newsmagazines


• teen


• celebrity


• business and general interest

These are far from universally accepted among the buyers in the surveys, but it's still worth considering. For example, almost two-thirds of them (and, unfortunately, I don't have details of how the survey was done, which can greatly affect the results) expect a shakeout in the newsweeklies, with US News & World Report being the most likely candidate for closure. Strongest and weakest titles among celebrity titles? People was far out front, with Us far behind. And consider this sentence: "The rest, In Touch, Life & Style, OK! and Star, hardly registered [in perception as strong titles]." In other words, once you're past Us, safety among the famous drops off. More tidbits in the article.

On the newspaper front, we have an article from Rich Edmonds, a media analyst, at Poynter Online. He notes that while newspaper online advertising revenue growth has been the bright spot of the industry, it has been feeling a significant slowdown. As he notes, part of it owes to the calculations of growth percentages: as the total gets bigger, the percentage any addition represents is smaller.

But this so-called “law of large numbers” is not the whole story. As for the rest, "it is all to do with classified upsells," analyst Paul Ginocchio of Deutsche Bank Securities, wrote me in an e-mail. Classifieds are the leading edge of the bleeding in print advertising, with losses substantially worse than even pessimists had forecast for 2007. Unfortunately, as Ginocchio notes, classifieds typically make up about 70 percent of the typical newspaper site’s online ad revenue.

In the view of Edmonds, newspapers will need some significnatly new strategies - not more porting paper to pixels. He has some observations and recommendations worth reading. As always, no single piece of information should determine your business strategy. But, put together, they help to give some view of the near and mid-term futures of your industry.

Ten Periodical Market Research Sites

Doing research on a potential client always makes sense. If you're writing for periodicals, here are some resources that you're likely to find useful:

• Magazine Publishers of America The trade organization has many research resources available, even if you aren't a member.
  
• Periodical Publishers Association Interested in the UK magazine market? This is a magazine publishing trade organization in the country. Check the member list for many names with whom you're probably not familiar.


• Folio Magazine This is the trade magazine for the magazine industry. See trends, who's doing well, and industry scuttlebut that can help you better target potential clients.


• Editor & Publisher What Folio is for the magazine business, E&P is for newspapers. I generally stay away from newspapers as paying poorly, but you might find some useful information if the market fits your business plans somehow.


• Jim Romenesko Romenesko's column at Poynter is one of the great resources for rumors, and it also points to many relevant articles.


• Mediabistro.comThe media news roundup is good, and you can even get it emailed to you without having to be a paid member.


• Yahoo News and Media Listings Although not exhaustive, these catalog listings of magazines, newspapers, journals, and other media can be a time saver when you want to see some of the variety of publications on the market.


• Google News Directory Not the same as Google News, it's a set of categories listings like those of Yahoo.


• BoSacks Media Intelligence Good sources of news affecting the publishing industry, extending into all aspects of the business, compiled by an industry consultant.


• Custom Publishing Council This industry group has lists of custom publishers, which is a great research tool and potential lead generator for writers.

8 Pointers on Mixing Writing and Photography

A writer recently asked me about selling photos with articles. It's great if you can do it, but there are some things to consider:

• Know your stuff. Just as you would rightly be insulted if someone suggested that anybody could write an article, photographers and photo editors feel the same way when told that anyone can snap a picture - and the results prove it. Good photography is as hard to achieve as good writing, so learn about the technical and compositional aspects and then practice. If possible, get someone to critique your early attempts so you can avoid telltale signs that you're just pushing the button. Study good photo work in publications you'd like to reach and get yours up to that level. I still work on learning more, and I've been taking photos for at least 30 years and even recently published the Complete Idiot's Guide to Canon EOS Digital Cameras. If I can stand to learn more, you probably can as well.


• Talk to the right people. You wouldn't approach an advertising sales manager with an article idea. Know who looks at photo pitches. Generally it will be a photo editor separate from the editorial department. They don't like having their turf marked up by others, so be considerate and respectful of their positions and don't assume that your editor will assign you photo work.


• You can't always be everything. Yes, it's nice to make more money, but many publications have a prejudice against jacks-of-all-trades. I can remember a magazine where I had contributed for a number of years where the photo people wouldn't even entertain looking at my work because they found that, generally speaking, writers weren't good photographers. (That goes back to the first point.) Realize that some won't want to open the photo door to you.


• Get an introduction. Even though there are separate territories, if you've worked with an editor for a while, he or she might be willing to give you an introduction to the photo people. I've gotten such introductions at most of the magazines for which I've done some shooting.


• Find your strengths. Just as there are certain types of articles and topics at which you excel, you will have photo strengths and weaknesses. Until you can bolster the weaknesses, sell on the strengths, whether formal portraits, candid work, a knowledge of particular conditions, or certain types of formats and results that you can provide.


• Invest in your business. Unlike writing, photography is equipment heavy. Make sure that what you have can provide the quality results that photo departments need. For example, don't try to get away with a point-and-shoot digital that won't give you the image size, resolution, and file format that the editor is likely to want.


• Learn the lingo. If anything in the previous point was confusing, then it's time to learn more about the language of photography - not just how to do it, but how to communicate about it. Know as much about how to communicate with photo departments about their needs as you know about communicating with editors. Also learn the organizational structure of the typical photo department and the usual business practices in the field.


• Watch the rights. Ultimately there is money to be made in reusing photographs. Don't let some publication snow you into thinking that selling all rights is normal. Most photographers are far more sophisticated about rights issues than writers, so learn from them.

It's certainly work to get there, but photography can add significant revenue to your assignments and satisfaction to your story telling.

Organize Magazine and Opportunity Risk Analysis

Part of a freelance writer's business is analyzing a client before you consider working with it. You need to answer questions about the reputation of the people involved in the venture and the company's financial stability and ability to pay. I thought this might be clearer through an example.

The subject of a recent New York Times article was a new publication called Organize. Joyce Dorny, a professional organizer, developed the concept with an investment of about $100,000. No one involved with the venture has ever run a magazine before. According to a second article, the title is selling in some supermarket chains, all 500 Borders stores, and three-quarters of the 800 Barnes & Nobel stores, with the first issue getting orders for 20,000 copies. The bimonthly's first issue has nine pages of advertising.

I did a quick web search and found nothing alarming. If I were actually thinking of taking an assignment, I might do a search on a service that can pull up public records, including criminal and bankruptcy, to see if there are any red flags that might make me uncomfortable about doing business.

Now let's look at the available financial information. In this case we have a significant piece of information: the size of the start-up investment. According to MagazinePublisher.com (site of a custom publisher):

A small niche subscription base magazine can probably be launched for under $50,000 - a full featured newsstand consumer magazine would require into the millions to successfully launch.

Distribution and content help tell you what the magazine's focus is. In this case, according to the Times piece, the focus definitely seems to have a consumer slant:

Marketed to women who work full-time or are full-time mothers, its purpose, Ms. Dorny said, is to help these women find “a sense of order and a feeling of control over the work desk or toy bin.”

If you see a picture of the magazine, it appears to be a glossy with sophisticated design. All this means that the start-up costs are quickly racking up the zeros. This money has to cover printing, design, content, customer acquisition, marketing, and many other expenses. In other words, $100,000 for a title like this is little money. Now factor in that the ad sales of the first issue were only nine pages out of a total of 64 pages. That's 14% ads, which is extremely low in the industry. The question is whether there will be enough cash flow to keep everyone paid in a timely manner without depending on an additional investment.

Of that first 20,000 order, according to experts in the business, traditional magazine distribution typically sells only 3 out of every ten copies it places. Combine that with the $4.99 cover price, and the total brought in could well be just under $30,000, and the publisher sees only some portion of that, with the rest split by the distributor and the store. In other words, newsstand sales aren't going to bring a windfall, and neither will 9 pages of ads.

I don't know the people involved and certainly can't predict whether this venture might hit a consumer nerve or not. But the quick analysis would suggest that the numbers are against them without more investment, meaning that getting paid could be risky. Even if you took an assignment, it would seem prudent to wait for payment before accepting a second.

There may be rare cases where this kind of analysis causes you to turn down what would prove itself a great opportunity, but in the long run you'll avoid far more painful times than paychecks.

Addendum: Ms. Dorny emailed me. I had misread something in an article that made me thing she was an author - she isn't. I suspect the public reports of the numbers were off, as she said the distributor sold 35,000 copies of the first issue and they have about 1,200 subscriptions. The second print run will be at least 110,000, and they're investing more of their own money.

That said, the magazine hasn't paid any writers for submissions. As she wrote:

We have been very blessed with writers who believe in the idea of the magazine so much, and in the long term possibility of it, that they were willing to contribute for the mention of their name, business and/or website. They will be the first to get paid when we begin doing so (we plan to start with the jan/feb issue).

Definitely not a market for a pro writer, as you'd apparently be helping to underwrite the development of the magazine. I don't know if the designers were paid, though I'm pretty sure that printers don't work for nothing.

Update - March 29, 2008

Some writers had asked again if this market was paying, so I emailed owner Joyce Dorny. She responded as following:

We do now pay, but on a limited scale.

We pay $500 for a feature article and $250 for a column. We also pay on the 15th day of the publication month.

So it is a paying market, though limited pay and payment comes after publication.

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.

Review: WORTH Writer Guidelines

The WORTH Magazine writer guidelines have been generating some complaints in the freelancing community, and after looking briefly at them, it was easy to see why. The magazine apparently buys all rights and won't negotiate that point. Oh, wait, did I say that it won't negotiate rights? The guidelines come out and say that the publication won't negotiate anything:

The terms of our contract are final and non-negotiable. Journalists must sign and return our contract to us, unamended [emphasis theirs], before we release payment. We will not pay a writer who amends our contract in any way.

Personally I find that sort of take it or leave it attitude to be unacceptable. The relationship between a writer and a client is business, not that of servile chattel to owner. And if that wasn't enough, a kill fee is for an article that the editors accept but that are "not published, though no fault of the writer." Guess WORTH doesn't always find it worth the time to uphold its end of a bargain. Smart writers will find another publication worth their attention.

Blogs - Backdoors to the Minds of Clients

Want to get to the inside workings of clients? Try a blog. Oh, sorry - not yours. Theirs.

I just read a story in a publishing trade magazine called Circulation Management. The topic was how many publishers are running blogs on their sites. According to a study, three-quarters of all newspapers run blogs on business-related topics.The Magazine Publishers of America has an online list of 400 blogs of member companies - go there, click on a publication title, and you get a list of at least its top blogs (though possibly not all). Highlight the blog and you see recent post headlines with a first paragraph available by selecting that story. Blogging is also a rapidly increasing trend for many companies that are trying to communicate with their customers.

I'm sure some people think immediately of how this might turn into a regular assignment, and while that might be a possibility, it's actually not the big payoff. What blogs - particularly those written by prominent staffers and top editors - provide is a window into the interests of the publications. You get a real-time clue as to what they think about and what trends they see, by virtue of the content. Forget about only looking at back issues that may or may not represent old editorial regimes or discarded concepts. As things change, you'll see it on a daily or, at worst, weekly basis. Use it well and you'll have a head start to a winning query.