Contract questions

[LloydBrown]

Don't be fooled by choosing the Bewares & Background check folder for this question; I don't doubt whether or not I'll be paid or whether this party will do anything underhanded with my work. I'd just like some feedback on a contract. For that matter, the publisher's new and he'd like to hear it, too.

I've removed references to the publisher's name. For the record, this is an electronic publication.

Specifically, I have concerns about points 3 and 8.

PUBLISHER
Author Agreement
​

Date

Author Name
Author Address


Dear Author:

This letter confirms the agreement between you and the editors of PUBLISHER, under which you will write and submit to us a manuscript on the subject “_____.”

1 The Work: The manuscript's total length on submission will be approximately _____ words. It will be completed and submitted to us by _____, and must be satisfactory in form and content to PUBLISHER. You will cooperate in PUBLISHER normal editing process, including reasonable rewriting as required.

2. Payment: Upon publication of the article, we will pay you a fee of $_____; If the editors of PUBLISHER decide for any reason not to publish the article, we will pay you instead a one-time "kill" fee of $_____. In that event, neither you nor we shall have any further obligation under this agreement, and you will be free to sell the article elsewhere. PUBLISHER will reimburse you for reasonable expenses incurred in preparing the article, up to $_____. Any expense that exceeds that amount must be approved in advance by your editor. You must provide original receipts or documentation for all reimbursable expenses. Although Publisher will make every effort to print Freelancer’s Work as quickly as possible, please be advised that the paper is a bimonthly publication; delays of 6 to 8 weeks are not unusual.

3. Grant of Rights: You hereby transfer and assign the entire copyright, throughout the universe, in any and all media and forms of publication, reproduction, transmission, distribution, performance, or display now in existence and hereafter developed, in the article to PUBLISHER. PUBLISHER may use your name and likeness in publishing, promoting, advertising, and publicizing its publication and information products and services, and in merchandising.

4. Records: You will keep all notes, recordings, and other materials used in preparing the article for a period of one year from first publication and make them available to PUBLISHER upon request. You will also provide to PUBLISHER relevant telephone numbers, e-mail addresses, and other contact information to aid in fact-checking the article.

5. Warranty: You represent and warrant that the article will be original work by you and accurate, will not have been previously published in any form, and will not infringe upon the personal or proprietary rights of or give rise to any claim by any third party, including but not limited to claims based on copyright, defamation, physical injury, or invasion of privacy or publicity. In addition, in the event that any complaint or claim relating to the article is made by any third party at any time, whether a formal legal complaint or otherwise, you will fully cooperate with PUBLISHER in responding to and defending against such complaint or claim.

6. Independent Contractor: As an independent contractor, Freelancer is not an employee of XXX [additional trade name of publisher--LB] or of PUBLISHER and is responsible for the payment of all taxes that may be due as a result of receiving payments under this agreement. Freelancer is an independent contractor and will provide his articles or graphics ("Work") to PUBLISHER as agreed upon with his or her editor.

7. Confidentiality: The subject of your assignment under this agreement and all details relating to it and the article are strictly confidential and may be discussed only with those directly involved in the preparation of the article. You will not allow anyone outside of PUBLISHER (including but not limited to the subjects and the subjects' representatives) to read the article or portions thereof before publication.

8. Limited Non-Compete: You will not, until thirty (30) days after the published date of the Work, write or publish, or cooperate in the publication of, in any form, an article, broadcast, or other communication, or submit to an interview, on the same or a similar subject as the Work unless the Author has received consent to do so by PUBLISHER.

9. Agent: If this agreement is executed by an agent on your behalf, said agent represents and warrants that it has full right and authority, pursuant to a currently valid Power of Attorney from the Author, to make this agreement on behalf of and to bind Author, including the grant of rights and warranties and representations specified herein, and will indemnify PUBLISHER against any claims of a: any nature arising from said agent's execution of this agreement. Attached to this agreement is the above-specified Power of Attorney.

10. General: This agreement sets forth the entire agreement of the parties, supersedes all prior agreements between the parties, and may not be altered except in a document signed by the party to be bound thereby. No contrary or inconsistent terms or conditions in delivery memos, invoices, letters, or other documents will be binding on PUBLISHER unless expressly agreed to in writing by the Editor of PUBLISHER. Any notices to PUBLISHER must be sent to the attention of the Editor or Senior Editor. This agreement will be governed by the laws of the state of Indiana.

Please sign and return one copy of this letter to indicate your acceptance of this agreement. You should keep the other copy for your own files.

Sincerely yours,
PUBLISHER


By

Assigning Editor: _________________________

Accepted and Agreed:

This ______________ day of ______________, ____

Writer: ___________________ Social Security #: __________________

 

[Aconite]

Lloyd, why do they want the copyright? And are you being paid enough to warrant their keeping you out of the market on "similar" (what consitutes "similar"? Who defines it?) topics for 30 days after publication? The way it's worded, you can't even start writing on a similar project without their approval.

A couple of other things I notice: There's no set time within which the publisher agrees to run the article (like, within six months from date of acceptance, or whatever), and you can't write or publish anything else on the topic until 30 days after it's published, and you don't get paid until publication, so that could really mess you up. Also, in part 5, how can you warrant that the work will not "give rise to any claim by any third party"? You can't control what third parties do. You can warrant that it doesn't violate copyright, privacy, etc., but you can't promise that no one will sue. People can sue over anything.

Personally, I think it stinks, and I wouldn't sign it as is.

 

[CaoPaux]

Would this be a work-for-hire deal?

 

[Cathy C]

There are several things that concern me greatly in this agreement, several of which have been already expressed here. But for the record:

3. Grant of Rights: You hereby transfer and assign the entire copyright, throughout the universe, in any and all media and forms of publication, reproduction, transmission, distribution, performance, or display now in existence and hereafter developed, in the article to PUBLISHER

This is an "all rights" deal, so you're selling the article as if it was a car or an appliance. It's gone. You have no further claim to it.

If the editors of PUBLISHER decide for any reason not to publish the article, we will pay you instead a one-time "kill" fee

As others have stated, this does not provide for mandated publication within a set time, so the other clause regarding non-compete:

You will not, until thirty (30) days after the published date of the Work, write or publish, or cooperate in the publication of, in any form, an article, broadcast, or other communication, or submit to an interview, on the same or a similar subject

means that your hands are effectively tied on this same subject for months or YEARS. Bad plan. At a minimum, I would use their own estimate of 6-8 weeks as a guideline, and add change the "Payment" section to include language that ties them to a time line. If 6-8 weeks is the norm, then give them ten to fish or cut bait and pay you the kill fee. Otherwise, it's unreasonable.

In addition, I don't like this:

Upon publication of the article, we will pay you a fee of _____;

especially since there's no requirement that it EVER be published. You're effectively writing this on spec and handcuffing yourself on the topic besides.


Now, this:

PUBLISHER may use your name and likeness in publishing, promoting, advertising, and publicizing its publication and information products and services, and in merchandising.

IMPLIES that the article being published will be under your by-line, but it doesn't state anywhere that your name will appear. It should be stated clearly. If you're not getting a by-line, then they shouldn't get to use your likeness. You should also insert language that allows you to publicize the article on your own website and resume. This is a standard courtesy and hurts no one.

The whole confidentiality section is just flat weird. Unless you're writing about a top-secret subject, or about R&D (research and development) sort of stuff, I really don't like this. It's worded so that you can't EVER talk about it, not just until publication. You only can't show the article before publication, but you can't EVER talk about it. I'd want to know why you can't even tell people about the assignment. Just weird.

At first, the agent being required to have a Power of Attorney grabbed me in a bad way. But in an all rights situation, you're signing away your legal rights to the work, so it makes sense, I suppose. An Exclusive Agency Agreement doesn't deal with an agent signing away your rights (for good reason!)

In paragraph 10, this:

Any notices to PUBLISHER must be sent to the attention of the Editor or Senior Editor.

should be much more clearly spelled out. The NAME of the person, and the physical address should be clearly stated in the agreement as should your own address. This agreement is squirrely enough that you should get as much information as possible. I would also include a requirement that any notices, ON EITHER SIDE, be by certified mail, return receipt requested.

The things I notice that are MISSING from this agreement are:

1. Your ability to voluntarily withdraw the article from consideration after you sign. Since you're not paid until publication, you should have that right. But it's not in here and the "entire agreement" clause in paragraph 10 doesn't allow for any interpretations that AREN'T in the agreement.

2. Your right to a by-line.

3. Your right to publicize this article on your own site, on your writing resume, to reference the article in possible interviews about you as a writer, or otherwise for your own use.

4. Your right to copies of the printed article, (or at least tear sheets) for free. I would specify that you get a copy or two of that issue for free.

5. Your right to refuse certain edits. As it stands, you MUST do edits. It says "reasonable" but without definition, that has little meaning. Normally, you can either edit or pull the article if the editor wants to make changes that you feel are out of line.

Personally, I'd want some substantial edits to this agreement before signed. Of course, if they're paying a hefty amount for the article, you might not care about the details.

Your choice.

 

[LloydBrown]

Would this be a work-for-hire deal?

This would be a work-for-hire for an e-publication.

The rate is not great. I am accepting below my norm because it directly supports something else I'm working on. Also, I want to support the site and am willing to give up some early money to encourage growth. If it becomes sustainable later on, I'll ask for more.

 

[Vomaxx]

I love the line "throughout the universe". (You gotta watch out for those crafty publishers on Mars and Alpha Centauri.)

 

[DaveKuzminski]

So, whose contract is it?

 

[LloydBrown]

So, whose contract is it?

Give it just a bit more time, s'il vous plait, Dave. I plan to invite him here, but I'd like to see if it gets any more discussion.

 

[HapiSofi]

Seems okay to me. It's a straightforward work-for-hire contract.

The most distinctive thing about it is how well it's written. It's clear, businesslike, and precise, mindful of the legalities but phrased in natural language whenever possible. The fact that they also use the semicolon correctly, and know how to spell supersede, is no guarantee that they aren't villains; but it does prejudice me in their favor.

Asking for copyright is hardly unheard-of in work-for-hire deals.

They don't guarantee publication within a certain time. That's legit. Periodicals have to constantly juggle their contents in order to cope with changing circumstances. They can only do that by having a stash of material in excess of what they can immediately publish. Inevitably, this means that some articles will get bounced from issue to issue to issue before they're either published or killfiled.

The noncompetition and nondisclosure agreements don't seem terribly onerous, unless you're a specialist and this particular subject is your bread and butter. If so, see if they'll negotiate.

Not taking a hard line because you want to cultivate a relationship with a publication is a legit strategy.

If you feel good about it, go for it.