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The Contract

Below is the core language contained in Transcontinental Media’s new “Author Master Agreement.” We have interspersed it with explanatory text to help illustrate what the legalese really means. Click here to download the full PDF.

You are being commissioned to produce original works (each, a “Work) for use in association with a Brand owned or operated by the Publisher. A “Brand” as used herein refers to the brand under which your Work will first be published and also to its associated brand(s) language counterpart(s), in any form or medium.

Transcontinental offers no explanation of what an “associated brand(s)” is. Is More magazine an associated brand of Canadian Living? After all, they’re both read by women. This contract offers no explanation or definition of an associated brand, and that means Transcontinental leaves to door wide open for it to use and reuse content amoung its properties. The opening line about producing works for “use in association with a Brand” is either highly vague or simply misleading.

You retain the copyright ownership of each Work that you provide subject only to the rights granted to the Publisher below.

This is something of a smokescreen. Sure, the writer retains copyright, but Transcontinental is going to make sure it can still do whatever it wants with the work — and prevent writers from profiting from their copyright.

RIGHTS GRANTED
1. In consideration of the basic fee agreed upon at the time each Work is commissioned and subject to Section 3 (Additional Fees) where applicable, you grant to the Publisher the following rights in association with a Brand:
1.1 the right to first publication of the Work and subsequent ongoing non-exclusive right to publish the Work; 1.2 the ongoing non-exclusive right to do in respect of the Work any other act that is subject to copyright protection under the Canadian Copyright Act (including, without limitation, the right to produce and reproduce, translate, develop ancillary products, perform in public, adapt and communicate the Work, in any form or medium) as well as to authorize others to do so on behalf of or in association with the Publisher;
1.2 the ongoing non-exclusive right to do in respect of the Work any other act that is subject to copyright protection under the Canadian Copyright Act (including, without limitation, the right to produce and reproduce, translate, develop ancillary products, perform in public, adapt and communicate the Work, in any form or medium) as well as to authorize others to do so on behalf of or in association with the Publisher;

Clause 1.1 gives traditional first publication rights, which is fine, but then it asks for the “ongoing non-exclusive right to publish the work.” Well, that’s not exactly first publication rights. Transcontinental has the right to publish it as many times as they want. Transcontinental isn’t paying writers enough to publish a work more than once. If they keep republishing a work, that cuts into the writer’s ability to resell second rights. A fee should be negotiated each time they want to republish something. Otherwise, what’s the point of first rights?

Clause 1.2 is a non-starter. The idea of licensing copyright forever on a non-exclusive basis, in any form or medium, for no compensation is, well, abusive — especially for rates that reflect first publication rights circa 1985. If Transcontinental wants to use the work on a website, video, radio program, or iPhone application etc., these uses should be worked into the fee structure. There are many ways to easily deal with this in a contract. (For example, have the writer tick the appropriate boxes with an agreed-upon fee for each use.) But don’t try to license copyright forever for free to cover all possible uses under the sun.

This is one of the killer parts of the contract. Transcontinental is taking the right to, in effect, do whatever it wants with the writer’s work. On top of all of this, Transcontinental takes the right to let others “do so on behalf of or in association with the Publisher.” Wait, what happened to all that friendly talk about them only using the work in association with a brand? It’s gone. Notice that suddenly the publisher — meaning Transcontinental Media — gets the right to do anything it wants. So much for all that talk about brands…

1.3 the ongoing non-exclusive right to edit and otherwise reasonably modify the Work.

Writers should always have final approval/sign-off on edits and modifications. “Reasonably modify” can mean different things to different people. This is basic stuff.

2. You acknowledge that all rights granted herein are applicable to all media (including, without limitation, all digital and electronic media now known or hereafter created) and also includes the Publisher’s ongoing non-exclusive right to archive the Work (including in digital databases and abstracting/indexing services) and to make the archived Work available to the public, either directly by the Publisher or through third parties.

So if all this other stuff isn’t bad enough, Transcontinental is taking all digital rights to the work – for zero compensation. This also inhibits a writer from reselling their work, as other publications aren’t usually interested if a story is already on a website. Oh, and the company will also make money through databases and indexing services, none of which will go to the writer. All without increasing their rates. A fair contract would give the writer 50 percent of this revenue.

This section just reinforces all of the rights taken in 1.2. And once again, it’s all about the publisher getting those rights. The writer is giving Transcontinental the ability to take a story and do whatever they want with it — forever.

ADDITIONAL FEES
3. In addition to the basic fee, the Publisher undertakes to pay you the following additional fees if the Work is used in the manner described hereinafter:
● 10 % of the basic fee if the Work is translated;
● 10 % of the basic fee if the Work is published in a paper format special issue;
● 10 % of the basic fee if the Work is published in a paper format book.

Transcontinental executives have suggested this is some phenomenal gesture that underscores the inherent fairness of this contract. But writers want to negotiate these fees, and Transcontinental refuses to allow that.

Remember that the three types of use outlined above are in no way representative of all of the rights taken in sections 1.2 and 2. The company is  offering a tiny bit of money for three specific uses that have nothing to do with online rights, selling access to a database, and all of the other uses the company now has at its disposal. Once again, these tiny 10 percent payments  — which are far below industry standard — are nothing more than a smokescreen to make writers forget what they’ve already given away for free, forever.

4. (Optional) Please check and initial if you agree to grant to the Publisher the ongoing non-exclusive right to use the Work as provided in Section 1 above under any other Brand owned or operated by the Publisher, that is different than the initial Brand under which the Work was first published, provided that the Publisher undertakes to pay you 15 % of the basic fee as an additional fee should the Work be used in the aforementioned manner.

This section is basically pointless. It only matters if the writer bought into the “brand” language at the top of the contract, which suddenly disappeared when the contract got to the most important sections (1.2 and 2). It seems as though it reinforces the point that Transcontinental only wants to use the work in association with a brand, yet the contract already includes enough hedging language to suggest that the company can already use it far and wide — and even license others to do so.

5. You acknowledge that no additional fee is payable (i) when the Work is used for promotional purposes relating to the Publisher or Brand under which the Work is published; or (ii) when the Work is published on a web portal which provides a single point of access to different Brands owned or operated by the Publisher (as, for example, http://www.mochasofa.com, the web portal of the Publisher’s consumer publications).

So web portals aren’t real websites? This is yet another section that simply allows Transcontinental to do whatever it likes with the work for no additional payments. Simply put:  web portal usage falls under web rights, and these should be purchased.

What’s Missing From The Contract

  • Payment Terms: When a writer can invoice and how long Transcontinental can take to pay. This is standard in any contract.
  • Kill Fees: How much will Transcontinental pay a writer if an assigned story is canceled? A kill fee is yet another standard part of any magazine/newspaper writing contract.
  • Libel: What happens if the writer and/or publication get sued? Writers want to know that Transcontinental is going to cover the costs as long as they participate in defending it. This is too big a deal to leave out of a contract like this.
2 Comments leave one →
  1. November 4, 2009 3:14 pm

    The phenomenal number of horrendously paying writing jobs on offer, plus the dismal publishing scene is leaving writers desperate for whatever (little) work they can find.

    If we watch each other’s backs, there’s less of a chance to get scammed.

    Thanks for this.

  2. Loretta White permalink
    November 8, 2009 1:44 pm

    Loretta White
    November 8th, 2009

    I agree with Matt, that event though it is very tempting, especially for emerging writers to cave-in to a publisher’s unreasonable demands, things will never get better if we don’t hang tough and refuse to be screwed, and perhaps ultimately sued.

    I am a columnist with a community newspaper that offered me my first gig, neglecting to tell me they expected me to write for them unpaid, as they were offering an ‘opportunity’ to me for publication. I wrote for free for two months, then full of self-loathing, I quit. They called me back two months later to work for pay. I accepted, and later when the publisher thought it was a good idea to go on-line with the paper, archiving all of their writers’ columns without notice, negotiation or further remuneration I advised them that they were in breach of the Canadian Copyright Act (at that time). They took it down and negotiated an understanding with us.

    Ultimately,to get publishers to respect and value our work and profession, we must respect ourselves enough to say no to the institutionalized penury they offer and insist on justice.

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