SFWA Sample Magazine Contract

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Contents

Foreword
Sample Contract
Afterword
Notes

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Foreword

by Michael Armstrong
Chairman, SFWA Contracts Committee

This is a sample magazine contract for the purchase of original short fiction appearing in a print serial publication. The SFWA Model Anthology Contract should be referred to for suggestions on original short fiction appearing in anthologies. Eventually we will have to write a sample contract for electronic publications like Omni or Tomorrow, but that's another matter I feel should be treated in a separate article. I use the term "sample" rather than "model" to emphasize that this is a guide for negotiating or producing an author-friendly contract, whether initiated by an author or a publisher. Use of this sample contract by a publisher, whether in whole or in part, does not mean that SFWA or the Contracts Committee endorses that use. However, we are grateful to any publisher who uses this contract as a tool in writing author-friendly contracts.

Publishing has always been a volatile and rapidly changing industry. New technologies for publishing and distributing text material will emerge in the near future. No contract written in 1997 can predict exactly how a contract should read in 2001. Thus, this contract will quickly become outdated. However, the basic premise of this contract will serve you well in any contract you negotiate in the future. That premise? Sell the minimal rights possible, hang on to all other rights, and offer the publisher the opportunity to negotiate separate contracts for any other rights the publisher thinks it might want.

The following offered advice in writing this sample contract: Damon Knight, Raymond Feist, John Stith, Sarah Smith, David Alexander Smith, John Bunnell, Keith DeCandido, Gregory Feeley, Robin Bailey, and James Sarafin.

As with previous SFWA Contracts Committee advisories, the information here is for educational purposes only, and is not intended as a substitute for legal advice from a practicing attorney licensed in your state or province. For legal advice you should consult an attorney.

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The Sample Contract

1     This contract is made between PUBLISHER whose address is 
2     [PUBLISHER'S ADDRESS], hereinafter referred to as the 
3     PUBLISHER, and ____________ [AUTHOR'S NAME], whose address 
4     is ___________ ___________________________________[AUTHOR'S 
5     ADDRESS], hereinafter referred to as the AUTHOR.  
6     
7     The parties agree as follows:
8     
9     Author's Grant.  
10    
11    1. The Author grants permission to include his/her story 
12    entitled "_____________________ ______________________," a 
13    work of approximately _________words, hereinafter referred 
14    to as the Work, in ____________________________ [MAGAZINE'S 
15    TITLE], a serial publication bearing an International 
16    Standard Serial Number (ISSN) number.*
17    
18    Rights Purchased.  
19    
20    1(a).  This use of the Work by the Publisher entails the  
21    assignment of First North American Serial Rights*, for  
22    publication in the English language anywhere in North 
23    America.  It is also understood and agreed that the 
24    Publisher may use this Work only in the above-mentioned 
25    magazine and that all rights not expressly granted 
26    herewithin reside exclusively with the Author, including but 
27    not limited to electronic rights.
28    
29    Options on Further Rights*
30    
31    2(a).  The Author grants to the Publisher the right of first 
32    offer on world anthology rights and first foreign serial 
33    rights.  The Author also grants to the Publisher the right 
34    to make an offer on non-exclusive reprint rights.
35    
36    2(b).  If the Publisher desires to exercise any of these 
37    offers, separate agreements must be entered to and signed 
38    for each use of further rights.  
39    
40    Payments and Royalties.*
41      
42    3. For the rights granted to the Publisher above in 1(a)  
43    the Author will receive a payment in the sum of  $_______, 
44    which will be paid within thirty (30) days of signing this 
45    agreement. 
46    
47    Access to Records.
48    
49    4. In the event of Publisher's failure to make timely  
50    payment, the Author may have access in person or the 
51    Author's agents or by power of attorney to all financial 
52    records of the Publisher upon presentation of a copy of this 
53    agreement to the appropriate location of said records.  
54    
55    Authors' Warranties and Indemnities.*
56    
57    5. The Author represents and warrants that he/she is the  
58    sole author of the Work, that the Work is original, and that 
59    no one has reserved the rights granted in this agreement. 
60    The Author also represents, to the best of his/her 
61    knowledge, that the Work does not contain any libelous 
62    material.
63    
64    No competing Publication
65    
66    6. The Author agrees not to publish or permit others to 
67    publish this Work in any form prior to its publication and 
68    appearance in the above-named magazine.  
69    
70    Author's Copies.*
71    
72    7. The Publisher agrees to provide the Author with six 
73    complimentary copies of the magazine upon publication.  The 
74    Author agrees to inform the Publisher of his/her current 
75    address.
76    
77    Changes in Text or Title.*
78    
79    8. The Publisher will make no major alterations to the 
80    Work's text or title without the Author's written approval.  
81    The Publisher reserves the right to make minor copy-editing 
82    changes to conform the style of the text to its customary 
83    form and usage.  To ensure that no such changes are made 
84    without the Author's approval, the Publisher will furnish 
85    the Author with galley proofs or page proofs of the Work in 
86    advance of publication. Author agrees to return such proofs 
87    with corrections in not more than thirty (30) days from 
88    receipt thereof.  
89    
90    Reversion of Rights and Withdrawal of Offer to Publish.*
91    
92    9(a). In the event that the Work is not published within 18 
93    months of signing of this agreement,  all rights revert to 
94    the Author, and the Author has the right to sell or arrange 
95    for publication of the above-named Work in any manner.  The 
96    Author shall keep any payments made by the Publisher to 
97    him/her.
98    
99    9(b). In the event that a copy of the counter-signed 
100   agreement is not returned to the Author within thirty (30) 
101   days of signing by the Author, or that payment in 3(a) is 
102   not made as specified, the Publisher's offer to purchase the 
103   Work shall be considered withdrawn.*  
104   
105   Copyright.
106   
107   10. The Publisher agrees to list a proper copyright notice 
108   for the Work in the name of the Author on the first page of 
109   the printed story, and to take all necessary steps to  
110   protect the Author's copyright in the United States, and in 
111   the International Copyright Union.
112   
113   Author's Credit*
114   
115   11. The Author will be credited on the table of contents 
116   page and at the beginning of the story as ______________ 
117   [AUTHOR'S BY-LINE].
118   
119   Venue.*
120   
121   12. This agreement shall be deemed executed under the laws  
122   of the state of [PUBLISHER'S STATE OF BUSINESS]. 
123   [PUBLISHER'S STATE OF BUSINESS] state law shall be the 
124   applicable law of this agreement.
125   
126   The parties acknowledge that each party has read and 
127   understood this contract before execution.  
128   
129   In witness whereof the parties have executed this contract  
130   in duplication originals on this _____day of ______,  19__.  
131   
132    _____________________________________ __________
133    Author or Author's agent               Date
134   
135   If signed by Agent, give Agent's address where payment  
136   should be sent.  
137   
138    ___________________________
139   
140   
141    ___________________________
142    Author/Agent Social Security or Tax ID Number
143   
144    __________________________________________________    
145   [NAME OF PUBLISHER OR PUBLISHER'S AGENT], Publisher    Date
146   
147   Please sign and return all copies. One copy signed by all
148   parties will be returned for your files.*
149   
150   RIDER 1 (OPTIONAL)*
151   
152   First Anthology Rights
153   
154   1(a).  For the right to first publish the Work in an 
155   anthology, whether in North America or Overseas, the Author 
156   will receive an additional payment in the sum of $_______ 
157   [At least 30% of North American Serial Rights].  This sum 
158   shall constitute a payment separate from any royalties 
159   earned from use of the story in an anthology.  The author 
160   shall receive a pro-rata share (defined as a comparison of 
161   the page count of the author's story compared to the page 
162   count of the anthology as a whole) of 50% of the royalty 
163   earnings of the anthology.  "Anthology" shall be defined as 
164   any collection bearing an International Standard Book Number 
165   (ISBN).  The anthologist or editor will provide the author 
166   with copies of any royalty statements.
167   
168   1(b).  The Publisher shall provide the Author with at least 
169   three (3) copies of the Work so published.
170   
171   1(c).  In the event that this right is not exercised within 
172   18 months of the publication of the Work in the Magazine, 
173   this right shall revert to the Author.
174   
175   RIDER 2 (OPTIONAL)*
176   
177   Reprint Rights
178   
179   1(a).  For the non-exclusive right to reprint the Work in an 
180   anthology, whether in North America or Overseas, the Author 
181   will receive an additional payment in the sum of $_______ 
182   [At least 20% of North American Serial Rights].  
183   
184   1(b).  The Publisher shall provide the Author with at least 
185   three (3) copies of the Work so published.
186   
187   1(c).  In the event that this right is not exercised within 
188   18 months of the publication of the Work in the Magazine, 
189   this right shall revert to the Author.
190   
191   RIDER 3 (OPTIONAL)*
192   
193   Foreign Rights
194   
195   1(a).  For the right to reprint the Work in a foreign 
196   magazine edition of the Magazine, the Author will receive an 
197   additional payment in the sum of $_______ [At least 20% of 
198   North American Serial Rights] for each appearance in a 
199   foreign magazine edition of the Magazine.  "Magazine 
200   edition" shall be defined as a serial publication bearing an 
201   International Standard Serial Number (ISSN).
202   
203   1(b).  The Publisher shall provide the Author with at least 
204   three (3) copies of the Work so published.
205   
206   1(c).  In the event that this right is not exercised within 
207   18 months of the publication of the Work in the Magazine, 
208   this right shall revert to the Author.

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Afterword

Other Issues: Some publishers now ask writers to provide them with the manuscript on disk. The Contracts Committee didn't cover this, because we don't want to raise the issue and give publishers ideas. Providing the publisher with a paper manuscript copy should be sufficient for their needs. If the publisher asks you to provide the manuscript on disk, you should ask them to pay for this service. In effect, the publisher is asking you to donate typesetting services. If you did not type the manuscript on a computer, requiring you to submit a disk would mean you would have to pay to have the manuscript scanned and typeset.

The Contracts Committee also didn't include a clause on how you go about selling electronic rights. In the current industry, most publishers produce editions that are in paper text form, or in electronic form, but not both. Until a publisher can show how they will publish paper and electronic editions, why let them have rights they have not demonstrated they can use? If a publisher has a new technology in the works and they want to purchase electronic rights, use Rider 1 as a guideline for selling those rights. Make them as specific as possible. Use the anthology clause on the theory that something published electronically, whether on the World Wide Web or on CD-ROM, will sell like a book anthology, with a longer "shelf" life than a serial magazine.

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Notes

Lines 14-16: Because some magazines may define a book edition of a magazine as a serial magazine, the clause "serial publication bearing an International Standard Serial Number" has been added. Because they may pay royalties on copies sold, an original anthology series that is published periodically, such as Orbit, Universe, Starlight, etc., should be considered an anthology, not a serial publication. Foreign editions of the magazine published in book form should also be considered anthologies.

Lines 20-21: For simplicity's sake, this contract is a purchase mainly of First North American Serial Rights. Some publishers may seek to purchase World English Rights instead.

Lines 29-38: Because some publishers misuse the purchase of foreign rights and other rights, I suggest negotiating for those rights in a separate contract. Some publishers separate payment for those rights. The author can attach the optional riders at the end as a way of specifying purchase of those rights. This clause offers the publisher the right of first offer on those rights.

Lines 40-45: As a general rule, set a time limit for the publisher to respond to signing this contract or sending checks. See the reversion clause for what happens if payment is not made.

Lines 55-62: This is the Author-friendly, weakened version of a Warranty clause. Many publishers may want to add further language regarding rights of privacy, or an Indemnity clause regarding sustainment of damages in court, etc. Jim Sarafin suggests that the publisher protect the writer through the publisher's own liability insurance. He notes that if a writer wishes to be protected under his or her own liability insurance, the premiums will be more than what you can earn selling the story, so why bother selling the story?

Lines 70-75: Most publishers usually provide three copies, but we should up the expectations on this. If the publisher balks, insist that they offer you additional copies at cost. You might add a similar clause if you negotiate for the sale of foreign rights. Some publishers have a habit of forgetting to pay for foreign rights, and it is only upon discovering the foreign edition that a writer may discover use of these rights.

Lines 77-88: This protects you from a publisher or editor rewriting your work under the excuse of tight deadlines. Some publishers may suggest that they cannot guarantee sending the author proofs in a timely manner, in which case you remind them of fax machines and express mail service. David Alexander Smith wondered if 30 days was too long a time for the author to respond. Many publishers ask for 10 days, which is not too unreasonable, unless you happen to be nearing the deadline for a project which pays a lot more. Thirty days also allows you time to return the corrected proofs, particularly if you live overseas or at the end of the road in Romping Bears, Alaska.

Lines 90-97: This is what happens if a publisher doesn't publish the work. If you're feeling charitable, you might extend the reversion period to 24 months, but no more. If you can think of a good reason for a publisher to need more than 24 months, and you want to be nice, you can add this line: "With the Author's written consent, or for sufficient cause, the publication period may be extended."

Lines 99-103: This is what happens if the publisher fails to send a check or sign this contract. One notorious publisher (now out of business) used to hold off counter-signing contracts up until the date of publication, sometimes for years. The author would get an offer to buy the work and a contract, would sign the contract, and not have the counter-signed contract in hand. In effect, the writer only had an offer to purchase the work, and the publisher could hold that work in inventory without paying a dime. Without a counter-signed contract, the author may not have a claim against the publisher. Clause 9(b) takes care of this problem.

Lines 115-117: Another publisher has strange ideas about the choice of the author's by-line. You may want to use the by-line "James Tiptree, Jr." and not "Alice Sheldon." This is how you do that. The convention in manuscript format is that the name under the title is the by-line you use. Put that name here, even if it's a variation of your legal name.

Lines 121-124: As the party making the offer, the Publisher's state of business is where the contract originates. The laws of that state apply. Usually, but not always, this is New York state.

Lines 126-148: This is the basic signatory stuff that goes at the bottom of most contracts. One publisher doesn't include a space for the author to sign the contract. Instead, he sends the check, and inserts a clause that says something like "by signing the enclosed check, you acknowledge your acceptance of these terms." If you get a contract like that, strike out the appropriate clause and initial it, and include these lines. Contracts should look like contracts, with lines where both parties sign their name to show they agree to the terms.

Lines 150-166: If you want to sell First Anthology Rights with First North American Serial Rights, add this rider. If you want to negotiate those rights separately, substitute this rider for paragraph 1 above. The fees are speculative here. First Anthology Rights should go for more than reprint rights. I picked the number of 30% out of a hat, but I think that's a minimal number. The reversion clause gives the publisher a limited amount of time to exercise any of these rights.

Lines 175-189: See above. Again, the fee is speculative.

Lines 193-208: See above. As in paragraph 1, this rider defines "magazine." Some publishers may want to buy the right to publish the Work in all foreign editions of their magazine.

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