Magazine Contracts
There are three ways that writers work with magazines. First, a writer may submit an unsolicited story or article. Second, the writer may submit a query letter to ask for an assignment or establish interest before submitting a completed article or story. Third, the writer may be a staff writer with a magazine that employs him or her on a full-time, part-time, or freelance basis.
An important aspect of the staff writer’s work is that the articles will likely be considered works for hire. As described in chapter 3 on copyrights, the work for hire doctrine provides that the magazine (as employer), rather than the writer, owns the copyright in a work produced within the scope of employment. Freelance writers who are commissioned to write for a magazine on an agreed-upon subject may also come under this doctrine if the idea originated with the magazine and the contract specifies that the article is a work for hire. The doctrine rarely applies to freelance writers who submit only completed articles or stories.
Many of the contract clauses generally found in book publishing contracts will be in magazine contracts as well. For example, unless your work falls under the work for hire doctrine previously mentioned, you own each of the separate rights that make up the copyright in your story or article. The contract with the magazine should contain a copyright clause describing which of the rights you agree to transfer to the magazine. The contract may also contain a warranty and indemnity clause, an advance clause, and a time-is-of-the-essence clause. Magazine contracts generally do not contain royalty clauses, and the contract will not likely provide you with any rights to make alterations or revisions prior to publication. Following are some of the variations on general book publishing contract clauses that are of particular concern when contracting with a magazine.
As already pointed out, when a freelance writer creates a work, he or she retains the copyright to that work. It is customary for freelance writers to sell one-time-only rights for work published in magazines. Most often, magazine publishers will agree to this arrangement unless they own several magazines and want the work to appear in more than one. It is a good idea to specify exactly what is meant by one-time publication rights. For example, would you consider that one-time publication would allow republication in later reprints of the original magazine or in a collection of the magazine’s work? What if the publisher wants to use your work in a series on a related subject in the future? What about online editions of the magazine?
Another area that requires attention is the scope of the publication rights, both in regard to the time the magazine has in which to publish and the geographical area within which the magazine will be distributed. You might wish to limit geographical publication to the United States and to the English language only. The right to publish your article in another language or in another country could prove valuable, especially if the article addresses a subject in the area of high technology, which could be of interest to readers of foreign publications.
SERIAL RIGHTS
Serial rights can be either first-serial rights or second-serial rights. First-serial rights allow parts or all of a work (be it an article, story, or book) to be published for the first time in a specific periodical before it is published anywhere else. Magazines will sometimes want one-time publication rights to include first-serial rights so the magazine is guaranteed to be the first to print the article. Since the right of first publication is a valuable right, it is uncommon for a magazine to agree to simultaneous publication, which would allow two magazines to publish the work at the same time. Such permission may be granted, however, if the magazines are unlikely to have an overlapping readership.
Second-serial rights give a magazine the right to reprint a story or part of a book after it has already been published elsewhere. Book publishers often arrange first- or second-serial rights for the books they publish. Customarily, in these situations, the book publisher agrees to pay the writer 50 percent of second-serial profits. In the magazine trade, it is customary for the writer to keep second-serial rights.
It is not uncommon for a magazine article to be edited into a book. The writer should retain this right, or, if the magazine insists, an arrangement should be made for appropriate payment.
TIME PERIOD FOR PUBLICATION
If possible, writers should require that the contract specify a reasonable amount of time within which a magazine must exercise its publication rights. It is common for a writer to agree not to submit a work elsewhere for a certain period of time after it has appeared in a specific magazine. But if the magazine postpones publication of the work, the work may lose its value with the passage of time. Furthermore, some publishers will put off publishing an article indefinitely, thereby depriving the writer of the opportunity to profit from it.
REPUBLICATION OR ADAPTATION OF A WORK
Generally, writers will want to reserve the right to authorize others to publish or adapt their work. Many pieces can be resold to other publications, and another publisher may want to include the work in an anthology or adapt it for other media. While these situations may be beneficial (aside from any payment involved), if the writer reserves the right to authorize such uses, he or she will receive the full amount paid for those uses, rather than having to share it with a publisher.
There may be situations in which authors can benefit by granting magazines the right to authorize other publication of their work, provided the magazine agrees to share the proceeds. This is particularly true with major magazines such as Esquire, which help publicize a writer’s work and generally have excellent sales connections. In such cases, the magazine may act as an agent for the writer whose work it is authorized to sell.
KILL FEES
Kill fee clauses commonly appear in contracts for commissioned works. In these clauses, the magazine has agreed to publish a specified work upon its completion. The clause covers the situation in which the writer completes a piece and the magazine decides not to publish it. The clause specifies a fee (they vary widely) that the magazine must pay the writer if the work is not published—generally, a percentage of the price that would have been paid had the article been published.
OTHER CLAUSES
A few other clauses may appear in a magazine contract. Many magazines insist upon a fact-checking clause, which requires the writer to verify facts in the article. Such provisions generally require proof of verification. You should find out exactly what kind of documentation the magazine will demand to satisfy this requirement, since verification and documentation can be costly and time-consuming. If your contract contains such a provision, be sure the compensation you receive for the article is sufficient to at least cover the fact-checking expenses.
A clause you might want to insert if you write fiction would be one reserving the right to develop the characters you have created. This clause is important if you want to develop the characters in future works. This clause may also be important if your characters can be copyrighted or protected as trademarks (see chapter 3).
Keep in mind when negotiating any contract with a publisher that as the copyright owner, the writer controls all rights in his or her work. An author should not grant any greater rights to a publisher than are necessary for the publisher’s needs. Before beginning, identify which rights are important, then make sure to either reserve them or receive appropriate compensation for their transfer. It is a good idea to include in the contract a clause such as “The writer reserves all rights in the work not expressly granted by this contract.” With this, writers can avoid unwittingly transferring more than they intended.