Contracts for Writers

contractUsually a magazine buys the right to publish the article for a specific period of time, after which the rights revert back to you. For example: ABC Magazine buys your article on fly-fishing techniques and publishes it in their March issue. In their contract they hold rights for 60 days after publication. So you can resell the article in whole or in part for publication in June, which means you need to query other magazines in March.

Timing of Payment and Publication Date

Ah, but what if ABC Magazine buys the article in January and doesn’t publish it until June? Well, you can’t publish reprints until September. If they sit on your article for six months and they are paying you for First North American Serial Rights until 60 days after publication, then you cannot publish the article elsewhere while it idles on the desk of an editor.

First North American Serial Rights

Basically, this means that the work is original and appearing for the first time anywhere in North America. If you have published an article on your website, blog or other online source that is accessible to anyone without logging in through a password, then the article is considered public and published. However, if only select readers can access your article/blog through subscription or password, then the article would not be considered public and you could sell it to a print publication as original under First North American Serial Rights. The argument is that if the article/blog is available for free, why should anyone pay for it?

International Rights

The rights to publish your article worldwide should be spelled out in the contract. Are you negotiating with a magazine that publishes in other languages? If so, how are they compensating you for the worldwide distribution of your article?

Online or Electronic Rights

The rights to publish or archive your article on a publication’s website or for e-reader devices should be spelled out in the contract. For example: an article I published in Marriage Partnership (circulation 000,000) gave me terrific exposure to readers of Christianity Today. When Marriage Partnership folded, my article stayed on the Christianity Today website. Why would I object to exposure to 2.5 million subscribers? When they asked to keep my article in their archives, I gave permission for free. I had already sold five versions of this article to various aviation magazines, so I had tapped out the market for the article.

After the rights revert back to you, you are free to sell the article to another publication or publications.

Second Serial or Reprint Rights

All or portions of the article have been printed or published before elsewhere so what you are selling is Secondary or reprint rights. Often the second publisher will pay up to half the fee of the previous publication, or their own set fee for reprints. However, if you substantially rewrite the article, say 50 percent of it for the second publisher’s readership, then you could negotiate a higher fee than the straight reprint fee. This is up to the publisher and will be spelled out in the contract.

All Rights

However, there are magazines, like Reader’s Digest, that buy ALL rights forever and anon. This gives Reader’s Digest the right to reprint the article online, and in print, anywhere in the world whenever they please forever, and to change the content. Keep this in mind if you are tempted to sell them an article in your area of expertise. Similar articles that you publish anywhere else could be challenged as infringing on the rights of Reader’s Digest.

Work for Hire

Freelance writing is not the same as writing a work For Hire. In a work for hire, the writer gets paid a one-time fee for producing an article, ghost-writing a novel or preparing a document, such as policies and procedures, or a speech. In a work for hire, the employer or buyer owns the rights to the work. Only the employer or buyer can sell the work for publication or use. The employer has the right to put his name on the work and leave yours off.  Example Work for Hire contract wording:

[Employer] shall own all right, title and interest in and to the Work, and all additions to, deletions from, alterations of or revisions in the Work, and all drafts, notes, concepts, ideas, suggestions and approaches related thereto or contained therein, or other materials developed or furnished by [Employer], and each element and part thereof (collectively, for purposes of this Agreement, the “Properties”).
Without limiting the foregoing, Writer hereby acknowledges that the Work and services hereunder and all results and proceeds thereof, including, without limitation, the Properties are works done under [Employer]’s direction and control and which have been specially ordered or commissioned by [Employer] for use as a contribution to a work to be published and that all such services, results and proceeds shall be considered a work made for hire and [Employer] shall own all right, title and interest therein. Writer hereby acknowledges that [Employer] shall be the owner of the Properties for purposes of copyright and shall own all the rights in and to the copyright of the Properties and only [Employer] shall have the right to copyright the same which [Employer] may do in its name or in the name of its assignee(s). To the extent that the Properties or any materials contained therein or prepared therefore or the copyrights therein do not vest in [Employer] by reason of same being a work made for hire, Writer hereby grants, assigns and transfers to [Employer] all right, title and interest in and to the Properties and all materials contained therein or prepared therefore and the results and proceeds thereof to the extent that Writer has had or will have any right, title or interest therein.
[Employer] shall have the sole and exclusive right throughout the universe in all languages and in perpetuity to use and exploit all or any part of the Properties and all or any part of any material contained therein or prepared therefore, whether or not used therein, in any format or version, by any means and in any media, whether now know or hereafter developed.

Without limiting the foregoing, Writer hereby waives any and all claims that Writer may now or hereafter have with respect to the results and proceeds of the Work.

Indemnification Clause

Watch out for any contract that has an Indemnification Clause. Let’s say you write an article on a controversial subject and someone decides to sue the magazine because of it. An indemnification clause typically means that the writer, not the magazine, will bear the brunt of the legal defense. Do not accept such a responsibility, because there are nutty folks out there who will sue without cause. Even a frivolous lawsuit can quickly become expensive to defend.

National Writers Union

The National Writers Union, an organization representing over 1300 freelance writers, is affiliated with the AFL-CIO. Members of the NWU have access to legal counsel through the organization as one of the benefits of membership. When I last checked, they offered example contracts and advice to their members. Consider joining a large writers association for information on the latest issues on contracts, taxes, marketing, and the other business aspects of writing.

In my experience, magazine editors have been easy to work with and the contracts simple. With one new magazine, the editorial staff had not yet developed a contract for use, so I modeled mine after one used by another, larger magazine.

Kill Fee

A Kill Fee is paid to the writer if the article is not published, but a contract has been signed. There will be times in the career of a freelance writer when the publication they are contracted with stops publishing. If you have a kill fee clause, then you should get paid all or a percentage of the fee you would have been paid for publication. Once in a while a magazine will pay a kill fee to hand off your story to a staff writer to give that writer more time to develop the story or to include it in a special issue. If the magazine goes into bankruptcy, then the kill fee might not get paid.

While this blog does not cover all the aspects of contracts, it gives an overview of the contract and the major points to consider when negotiating as a freelance writer.

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