Contract Review: More Magazine (New Version)

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

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


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

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

Contract Review: Hospitality Design/Nielsen Business Media

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

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


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


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


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


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


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


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

Contract Review: The Independent Traveler

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

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


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


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


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


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


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


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


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


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


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


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


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


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

Contract Review: Adams Media

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

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


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


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


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


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


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


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


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


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


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


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


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


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


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


• Section 14. Waiver or Modification. Also straightforward.


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


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


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


• Section 18. Author copies. Self-explanatory.


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


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

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

Contract Review: American Express Publishing

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

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

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

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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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

Contract Review: Jenkins Group

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

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


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


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


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


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


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


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


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


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


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


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


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


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


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

Contract Review: FenderBender

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

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


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


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


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


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


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


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


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


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

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

Contract Review: 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.

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.

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