Scary Clauses to Consider
Whether a magazine's contract is for first North American serial rights or a work-for-hire deal, it often will include other clauses that have less to do with copyright and more to do with legal issues. You need to take these very seriously, as they can have implications for you long after your story is published.
The culture of lawsuits in the United States has made many magazines leery of carrying the risks that go along with publishing (odd, since that is their chosen business). In many cases, magazines are trying to push the risks associated with publishing onto their writers, usually for no additional compensation.
This risk-management shuffle will most often come to your attention as part of your writing contract. Not every magazine asks writers to sign clauses like those described in the following sections, but enough magazines do that it's important you understand exactly the position you are putting yourself into by signing.
Indemnification clauses deal with the question of who will pay the attorneys' fees if someone files a lawsuit against the magazine because of a story you wrote. If a magazine-writing contract includes an indemnification clause, the magazine is usually insisting that you pay your legal bills in addition to the magazine's legal bills in the event of a court action.
A contract's indemnification clause takes effect the minute a lawsuit is filed against the magazine. The lawsuit could be frivolous and completely without merit, yet you will still be responsible for defending yourself and the magazine in court.
How an Indemnification Clause Reads
A typical indemnification clause reads like this: “The author will indemnify publisher against, and hold publisher harmless from, any and all losses, costs, and expenses (including attorneys' fees) incurred by publisher with regard to author's work.” Notice that the clause states nothing about whether a legal action is valid or not. It only states that you, the writer, will pay for everything should anyone file a lawsuit against the magazine, for any reason, in response to your work.
Arguments For and Against
Now, a lot of writers feel that demanding this kind of financial commitment from them is ridiculous — especially in exchange for a mere $500 or $1,000 magazine-writing assignment. Considering that legal costs can quickly run into the tens and hundreds of thousands of dollars, that's quite a big risk for a writer to take for a single job.
On the other hand, many editors argue that if a writer does something that triggers a court action, the writer should be the one to deal with the consequences. Magazines usually have lawyers on retainer to protect their staff members, but those protections usually do not extend to writers who create articles on a freelance basis.
The Main Point
The practical upshot of the argument is that you, the magazine writer, need to be cautious about signing contracts that contain indemnification clauses. If you work as an S-corp or a limited liability corporation (as discussed in Chapter 3), you should have some protections that may keep your personal assets intact in the face of a lawsuit (check with your attorney about your personal situation). On the other hand, if you work simply as an individual, signing contracts with your personal social security number, then you may find yourself — and your life savings — wholly on the line should things go wrong after your story appears in print.
If a magazine will not let you cross out an indemnification clause in a contract, you can at least ask to insert the words “by judgment sustained.” This means that you agree to pay all legal expenses — but only if a court rules in the plaintiff's favor against you and/or the magazine. It's at least some protection, if not an ideal solution.
Another clause that has begun cropping up in magazine-writing contracts is the third-party promise. This clause goes hand-in-hand with the indemnification clause in that it basically promises the magazine that your work will not infringe upon the rights of anyone who might later file a lawsuit.
How the Third-Party Promise Clause Reads
A typical third-party promise clause reads like this: “The author agrees that the work will not violate or infringe upon the copyright or other intellectual property rights of any third person or entity, and that the work will not violate any agreements made by any third person or entity.”
Arguments For and Against
From the magazine's standpoint, this clause means that you are agreeing that what you write won't step illegally on anybody else's toes. At its most commonly understood level, this type of clause deals with plagiarism. You are promising the magazine — as well you should — that you have not violated any other writer's copyright by using content without permission.
Plagiarism is one of the biggest offenses a magazine writer can commit. You will not only lose your paycheck for a particular assignment, but you will often suffer irreparable harm to your reputation throughout the magazine industry. Just don't do it.
There are other implications to third-party clauses, though, and some writers believe they are drastically unfair. Consider this example, first cited in Chapter 3: You quote a company's marketing director about the production of a new kind of adhesive fastener, only to find out later that the scientist who invented the fastener did not give the marketing director permission to take the news public.
Knowing Where You Stand
Now, you have to ask yourself, is there any way you could have known that a marketing director — a person whose job it is to work with writers like you — had stolen the details of his own product's creation before making them public? Of course there's no way for you to know every single detail of every single deal that your sources make with other people. There's not even a way for you to know which other people your sources talk to in general.
And yet, a third-party clause makes you promise that you do know such things, that you are omnipotent, that “the work will not violate any agreements made by any third person or entity.”
This is sticky stuff at best, meant to protect the magazine further in the case of a lawsuit. Ideally, you will be able to cross third-party clauses out of any contracts you sign. If you can't cross them out, then you should at least add the words “to the best of the author's knowledge.” That is a much fairer representation of where you stand after a good-faith effort to do your job professionally.
Using Your Likeness
Some magazine-writing contracts include clauses that give the magazine “the right to use your name, likeness, and work, or any portion thereof, in conjunction with the promotion of the magazine or any affiliated publications including, but not limited to, promotions for upcoming issues that will include the work, circulation solicitations, advertisements for the magazine, and year-end reviews and anthologies of the magazine.”
Now, a lot of those uses of your name and photograph may seem perfectly legitimate to you, but notice the short phrase in the middle: “including, but not limited to.” What this phrase tells you is that the magazine is taking the right to use your name and photograph however it wants, whenever it wants, for all time.
Your byline is your calling card in the magazine-writing business. You want to ensure that your name and likeness are used only with your permission and only by publications that are reputable. Do not give away unrestricted rights to your name and likeness, even to a magazine you work with frequently.
Consider a case in which you sign a contract with one of these clauses, only to find out later that the publisher uses unscrupulous business practices that make you look bad with your editorial sources. Even if you disassociate yourself from the magazine and refuse to ever write stories for it again, the magazine has written permission from you to continue using your name and likeness as it sees fit, in perpetuity. Whenever possible, avoid signing such clauses. It's important that you protect your reputation as a writer.
Here's a clause that could cost you a lot of money: “Author agrees not to permit anyone else to publish or use the work or any portion thereof, including any background information, research, or other materials developed in conjunction with the work, for any purposes.”
Basically, what you're agreeing to if you sign this clause is that you will not use any of your reporting — whether or not it is actually published — for any reason, ever. This means that if you interview fifteen sources over the course of three weeks, and the magazine agrees to publish just one portion of one interview, that you can never use the rest of your research to create other stories for other magazines.
The magazine's thinking is that it wants to keep anything even similar to your story out of the hands of its competitors. But from your standpoint as a writer, this means doing an awful lot of work that never receives compensation. Whenever possible, strike this clause from your magazine-writing contracts.
Previous Contract Revisions
Magazines that you work for more than once may eventually send you a contract that begins by stating something like this: “This agreement supersedes all past and future agreements.”
The explanation from the magazine will be that it has begun using a new form of contract, and it wants you to sign it just as all the other writers are being asked to sign it.
From your perspective, though, what this line in a contract does is nullify all previous contracts you have signed, thus forcing you to re-negotiate the rights to everything you've ever written for the magazine in the past.
Are “all past and future” clauses necessarily bad?
No. If you can negotiate a better deal with the contract on your desk, and then ensure that it applies to all previous contracts you have signed with a magazine, then you will actually come out ahead. It can be hard to keep track of such details, though, so be cautious.
Pay close attention to the changes the new contract requests. In particular, be sure that before you sign such a clause, you are not giving back rights to the magazine that you retained for yourself in previous agreements. At the least, be sure to ask for compensation if the magazine is taking something new from you, even if it's on a story you completed long ago.
Once in a while, a magazine contract will include a clause that reads like so: “You agree to ensure that the magazine will receive suitable credit such as ‘First published in
This clause may seem innocuous at first glance, but again, don't be fooled. You want to retain your rights so that you can re-use your reporting and writing to sell more stories. What magazine is going to publish a story if it has to give credit to another magazine in the process? Strike this clause whenever possible. It effectively eliminates the value of any rights you are retaining.