UPDATE: Posted Sep 17, 2010
A number of freelancers have reported that Pacific Magazines are contacting them to “set their mind at rest” over the indemnity clause in this contract, with Pacific employees giving verbal assurances that a freelancer would only be liable for indemnity if they had pitched a story to Pacific, rather than if they had been commissioned to do a story.
Really?
Let’s take another look at this contract. Hmm, nope, not stacking up.
The indemnity clause actually states:
“12. a) Subject to paragraph (b), the Writer indemnifies the Publisher against any and all liability, loss, costs and expenses (Liability) arising from or incurred in connection with any breach by the Writer of any of the representations and warranties or other material term contained within this agreement.
b) The Writer’s indemnity obligation in paragraph a) does not apply to the extent that the Liability has arise as a result of the negligence or wrongful act of the Publisher or from any changes to the Material made by the Publisher or made by the Writer under the specific direction of the Publisher.”
This clause does nothing other than provide a minimal exemption from liability for the writer from a publisher-created subediting error. Whether the material was commissioned or pitched, the writer is still indemnifying the publisher against defamation and “infringing the rights” of any third party.
Nowhere in the contract is there any distinction between a story that has been pitched versus one that has been commissioned, let alone any definition of such terms.
This is a really, really badly drafted contract.
UPDATE: Posted Aug 5, 2010
In July 2010, after a number of freelancers contacted the Alliance regarding their concerns, Pacific Magazines updated their Contributor’s Contract.
While the company has added a very welcome clause, introducing syndication rights, the major problems in the contract are not hugely different.
In the new Clause 4, a 40% syndication fee is offered if material is licensed for use “in a publication which is not related to any of the Publisher’s publications.” Unfortunately, while the intent is good, the wording is not; what does “not related to any of the publishers publications” actually mean? Marie Claire magazine, for example, has at least ten international sister publications, while there are over twenty international versions of Men’s Health. Are these included or not? The syndication also excludes new media forms, so contributors wouldn’t get an additional fee from ipad versions; plus they miss the opportunity to gain revenue by on-selling stories themselves. And finally, there’s no guarantee that Pacific will re-sell any content (they may not bother trying, if there is a syndication fee involved.)
Clause 5 remains the same (with new number!); handing over copyright in perpetuity is a problem. Perhaps Pacific should consider a perpetual non-exclusive license? That way, they get to have usage; but the contributor has the chance to re-sell subsequent rights.
Clause 12 – regarding indemnity – is still a big problem. And Clause 12 (b) merely introduces a get-out clause for liability caused by normal subediting processes.
It’s difficult when a publisher asks for a warranty against defamation. A writer may be able to warrant against UNKNOWING defamation, but if you quote someone who says “xyz did this” then you can potentially defame someone based on the quote, without knowing the accuracy of the source or the effect of the statement. This is why publishers pay insurance companies the big bucks.
All in all, still quite a bit to be done. However, it is definitely a good sign to see that Pacific Magazines are willing to negotiate.
+++++++
First posted Mar 9 2010:
In February 2010, Pacific Magazines issued a new contract to freelance writers.
The Media Entertainment and Arts Alliance issued a statement to all its freelance members which included the following paragraphs:
Pacific Magazines, which publishes titles including New Idea, marie claire and Better Homes and Gardens, has issued a new contributor contract for freelancers that seeks to strip copyright and legal protections from freelancers.
The new contract requires freelance contributors to sign away all future rights to their work, which can then be used at any time by Pacific Magazines in any form of media, including online.
The company is also seeking to strip legal protections from writers, with the inclusion of a clause that appears to indemnify Pacific Magazines against legal action arising from a freelance contribution.
Your union is seeking advice on the legality of this contract and strongly advises all freelancers, whether they are Alliance members or non-members, NOT to sign it.
The Alliance is currently in negotiations with management at Pacific Magazines for a new collective agreement for permanent staff.
Members sought to have new provisions protecting the rights of freelancers included in the agreement – a claim thus far rejected by management.
Academic and freelance journalist Margaret Simons was scathing about the Pacific contract in her media blog in the Australian online journal Crikey, suggesting that writers should be paid $2 a word for work that delivered such a broad scope of rights.
Initially it seems Pacific are unwilling to negotiate terms.
The clauses that cause the most angst are:
The Publisher’s Rights to Material:
In consideration for the compensation referred to in paragraph 3 the Writer assigns to the Publisher all rights (including copyright) subsisting in the Material anywhere in the world (including any renewals or extensions to such rights). Without limitation to this assignment, the Writer acknowledges that the Publisher, its assigns and licensees have the right to utilise the Material (including any part of the Material) in any media currently known or hereafter created throughout the world in perpetuity, including (without limitation) any other magazine title and any website of the Publisher and any related entity.
It’s unusual – and quite harsh – for a magazine publisher to ask for copyright. Asking for “all rights” is actually quite vague in this context – does it include moral rights, enshrined in the Berne Convention as belonging to the creator?
To then extend this to “all rights” to cover the territory of “worldwide” – and to then go on and include rights in “any media known or hereafter created” is an extreme contract.
These sorts of contracts are known as “rights grabs” – and they are strongly condemned by writers groups the world over.
But wait – in the Pacific Publications contract, there’s more:
The Writer indemnifies the Publisher against any and all liability, loss, costs and expenses arising from or incurred in connection with any breach by the Writer of any of the representations and warranties contained within this agreement or any other liability, loss, costs and expenses that arise in relation to the Material.
Most publishers pay quite substantial indemnity insurance – it’s good protection against litigious subjects who may be inclined to sue if they don’t like the way they are presented in a publication.
But indemnity insurance is expensive – and unlikely to be affordable for the average freelance writer, with only 25 percent of freelance journalists surveyed by the MEAA in 2008 even putting aside money for superannuation. Individual premiums can be thousands of dollars. Yet shifting indemnity to freelance writers is unlikely to result in large savings for publishers, who still need to cover indemnity for staff.
This contract also fails to include basic writer protections such as describing what will happen if the publisher does not run a commissioned piece that satisfies the basic requirements.
The MEAA is getting legal advice and freelance writers across the country have been alerted to the issue.
Most editors are keen to hear from good, reliable, well-trained freelancers with strong writing skills and a knack for writing to the publication’s style.
If that’s you – wouldn’t you rather write for a publisher that does not require you to indemnify them, and that allows you to keep copyright and moral rights?
If Pacific Publications don’t want to lose the best writers to their competitors perhaps they should start looking at that contract again!
Writer's Contracts 