Many writers are keen to publish in magazines and newspapers, whether online or in print. These publications offer the perfect opportunity for name recognition, public exposure for a writer’s creative portfolio, and, depending on the publication, supplemental income. Regardless of the reason, it is in your best interest to secure a written publishing contract before publication.
While the legal provisions for magazine and newspaper contracts are similar to those in a book publishing contract, thankfully the terms are far fewer, less complex, and written in simpler language. When a newspaper or magazine publisher sends you a written contract, remember this is a starting point for negotiations. The very nature of a contract is to be negotiated. Or not, depending on your publishing goals.
As with any negotiation, the more leverage you have the better. So before you sign a contract or suggest modifications, understand first what you want to achieve with the publication vis-à-vis your writing career. Are you a newbie writer with few publications to your name? In that case, you may be willing to sign a contract as is just to have visibility. I did this recently with my New York Times essay. I wanted the byline. I didn’t care to negotiate. But maybe you are a freelance writer who depends on gigs for income. If so, you might be more inclined to negotiate better terms to fit your needs.
To help with the negotiation process, here are the basic terms of magazine and newspaper publishing contracts every writer should understand. A little upfront knowledge will help you make an informed decision about whether to negotiate or not.
1. The Work
Usually, the contract preamble defines the nature of the work the magazine or newspaper wants to publish. Whether the creative work is an article, editorial, short story, or a proposed topic you have pitched, avoid vague descriptions of the work. This will prevent the publisher from overreaching when it comes to what material is subject to the grant of rights.
Some magazine and newspaper publishers require that the contract terms apply to both the current work and any future work the writer sells to the publisher. Such language is overly broad and should be limited to the current work. If you are unable to remove the “future work” language, you can always ask to renegotiate a contract for subsequent work.
2. Rights Granted
As with book publishing contracts, the copyright in creative work is composed of separate rights that can be sold or licensed together or individually by you to the newspaper or magazine. Before entering into a contract with the newspaper or magazine publisher, understand what value your work will have beyond the initial publication. Will you reuse the work, maybe in an anthology or as the basis for a book? Will the work appeal to the movie and cable industries?
Understanding the rights you want to retain will help you negotiate what rights you can give the publisher. The contract should be clear as to which rights are licensed to the publisher and which rights are reserved for you. If not, the publisher may attempt to grab rights that you thought were yours.
Here are a few rights you should consider:
Right to Publish and Formats
- Typically, newspaper and magazine publishers will want the right to publish once. But not always. Some publishers rerun articles or have multiple publications. You will want to specify the number of times that a work can be published and in which formats (like print and/or online). Once in print? Repeat publications? Print and online? In multiple magazines owned by the client? If the contract requires you to grant “all rights” ask the publisher to narrow down the scope of rights that are necessary for their business needs.
- As for what formats, some publishers request broad language that allows them to exploit the work in all media available. You may be able to limit this, for example, to a grant of rights for print and online publications, reprints, and electronic and digital media. Standard rights for magazine and newspaper publishers these days include both print and electronic formats. If you have trouble narrowing down the broader format language, it is not particularly worrisome unless you do not have a specific and reasonable exclusivity period in the contract for the rights to revert back to you (see below).
- Be on the lookout for phrases like “work made for hire” or “work for hire” in a newspaper or magazine contract. These phrases mean the publisher owns all the rights to the work exclusively, not you. If this is not what you want, be prepared to negotiate modifications to the scope of rights. See my earlier post for more information about work-for-hire contract language.
- If you intend to reuse the work, like creating a screenplay from a short story, make sure the grant of rights does not include the right to make derivative works, except as needed by the publisher to edit and use in the formats authorized.
- A couple of catchall phrases you might want to add to your contract:
- a) “I reserve all rights in the work not granted to the publisher herein,” if there are subsidiary rights you want to protect.
- b) “The grant of rights is not effective unless and until payment is made in full,” can be added to ensure prompt payment.
Exclusivity and Duration
- Most magazine and newspaper publishers want the exclusive rights to publish the work first before you publish the same work elsewhere. This is reasonable but make sure the publisher is held to a specific timeframe. A thirty to ninety-day exclusivity period after the initial publication is usually customary. Never agree to an indefinite or permanent timeframe (unless you do not care about secondary uses of the work, say because you are a new writer and just want the publishing credit and paycheck).
- Depending on the work, secondary uses can be lucrative, like an article that spawns a great screenplay, a short story with characters worthy of a book series, or reprints in another format or magazine (like syndication rights where another publisher collects work from a number of writers and reprints the work in many different newspapers or periodicals).
- Once exclusivity has expired, make sure the contract contains the reversion of rights language so the exclusive rights in the work revert back to you. Receiving back only non-exclusive rights may mean you will be competing with the client when attempting to reuse the work, which may be okay depending on your long-term goals for the work and your career.
- Some magazine and newspaper publishers may want non-exclusive electronic rights to retain a story indefinitely in their electronic archives. If so, the contract should specify how that right is to be exploited. You should also be paid more for granting this non-exclusive right.
Territory and Language
- The contract must clearly state geographical limits. Find out where your publisher intends to publish the work. Will they exploit the work only in the US and in English? Will they exploit the work outside the US and in different languages? If the publisher asks for a broad territory, then ask for more money. If not, restrict the publisher’s rights to a specific territory, like only in North America and in English, then reserve the foreign rights to sell yourself. See my earlier Sidebar Saturdays article about exploiting foreign rights for more information.
Revisions are a given with newspapers and magazines. Editors need the flexibility to fit the work into stricter formats (e.g. page or word count limitations). A writer should have the right to see and discuss modifications to the work, as well as, the right to approve any and all revisions especially if those revisions alter the work substantially. You might even add contract language that limits revisions to anything that does not alter the work substantially.
Be aware that publishers may place strict time constraints on the revision process to keep control of their publication timeline. See my previous Sidebar Saturdays article on how to negotiate editorial control provisions if you need more information.
4. Kill Fees
Sometimes, as fate would have it, the creative work is never published. A “kill fee” provision will ensure you are paid regardless. Often kill fees are a percentage of the original price for the work. Should the publisher “kill” the piece, the contract language should also provide for the rights granted in the work to revert back to you.
Reimbursement of expenses depends on the project and publisher. Typically, expenses are your responsibility unless the contract states otherwise. Some projects require extensive research and other fees (privacy releases, permission fees, fact-checking fees, etc.). Accordingly, the payment can sometimes reflect this, or such ancillary expenses can be agreed to in the contract. Often a budget will be requested from the publisher. If so, add language that allows for a variance of a certain percentage should there be unforeseen costs.
Make sure the contract is clear as to when a project is due. Otherwise, you could end up in the unfortunate circumstances of a publisher changing the due date unexpectedly and nothing in the contract to save you from complying.
Avoid language that defines the deadline as “of the essence” or “in a timely manner.” Those deadlines are too flexible and could work against you. Make the deadline language-specific.
If the creative work requires materials from the publisher before you can finish the work (like interviews, documents, reference materials), start the deadline clock from when the materials are received.
Deadline extensions are reasonable to ask for but the contract should define what is considered reasonable. Typical extensions are provided for delays due to illness or other events beyond your reasonable control.
Often the deadline provision will include a clause for submission of satisfactory work and the ability of the publisher to reject the work should it be unsatisfactory. Such provisions are similar to those in book publishing contracts. Make sure the acceptance language defines what is considered satisfactory. If the publisher can reject work for subjective reasons, you might find yourself not being paid even though you thought you were following what the publisher initially wanted. For more information, see my earlier article on how to avoid unfair delivery and acceptance clauses.
8. Credit and Persona
You are a writer. You deserve credit. Make sure the contract specifies how the work will be credited.
Publishers often want to use a writer’s persona to promote the publication (like a pic, or short bio). You will want the right to approve the use of your persona if possible. At a minimum, make sure you have the right to consult with the publisher on what material will be used to promote the work. It is your persona; you should have the right to be involved in how it is used.
9. Warranties and Indemnities
These contract provisions warrant a writer has not violated any laws or ethics in the creation of his portion of the work (plagiarism, defamation, invasion of privacy, etc.). Indemnities are promises of reimbursement should those warranties be false. If you need more information, see warranties and indemnities.
Magazines and newspapers are great publishing platforms for writers. Before signing any publishing contract, it is imperative to first understand your goal for the creative project. Then, and only then, can you make informed decisions when negotiating terms to reach a solid contract that not only meets the needs of all parties but also avoids misunderstandings and problems between you and the publisher.
Photo Credit: Visual Hunt
Legal Disclaimer: This information is provided for educational purposes only. Consult a qualified lawyer in your jurisdiction for all legal opinions for your specific situation.