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RE: [GWL]: Hearst Publications Contributor Agreement

Irene --

Yes, I believe Hearst does, indeed, mean to include books.  I believe 
the actual language is legally ambiguous however.  'Serial' and 'book' 
have very precise meanings in literary law.  Your Hearst contract uses 
neither of these precise terms, but instead substitutes the ambiguous 
phrases 'print issues' and 'special editions.'  So, for starters, this 
clause should be changed so that you can be sure you are selling the 
same rights as the publisher thinks he is buying. 

I think Hearst has done a pretty good job of asking for exactly what 
rights they need and no more.  Any publisher who publishes all these 
anthology additions is going to want and need to have the right to reuse 
the work in those anthologies.  So you are getting asked for more 
anthology rights than average because you are dealing with a bigger 
publisher than average who has lots of related publications. 

Hearst is asking merely to reuse the photo in other closely related 
works of their own, not for all reprint rights.  Without the photo, the 
article it accompanies would not be usable without finding a substitute 
photo; so I think it is very reasonable for Hearst to want those rights.

There are really two problems here.  First, Hearst is so big that we're 
talking about a whole lot of potential anthology uses instead of the 
more normal single additional use.  It is very common for a magazine to 
want a one-time anthology use of some sort as part of the deal.  But you 
could be in for multiple uses, and in books as well as serials.    

Second, I don't think you should agree to the "no additional pay" 
clause.  Consider the worst case scenario.  Your photo could appear in 
half a dozen or more serial anthologies, including one as the cover 
photo, and half a dozen books, including as the cover photo.  Were that 
to happen, you would undoubtedly have serious regrets.  The time to 
avoid serious regrets is now, with the unsigned contract in hand.

However, it isn't likely that Hearst will be willing to pay more for the 
anthology rights than for the original use, because they may never 
exercise those rights.  (If they did pay more, it would be trivially 
more compared to the possible multiple uses.)  I think what is practical 
is to grant the anthology rights, but require extra money for any 
additional uses.  Such an arrangement is very common in publishing 
contracts.    

Frankly, I am guessing that Hearst expects that their more 
contract-savvy photographers will simply cross out the "no additional 
consideration" phrase and substitute, "to be compensated according to 
the fee schedule given in item z."  Then you add to the contract an item 
z that goes something like:  "Additional uses will be compensated as 
follows:  In serials, x for 1/4 page, x for 1/2 page, x  for full page, 
x for a cover;  in books, x for etc etc through cover."  If it were I, I 
would ask for maybe 80% of my going rate, and seriously consider 
anything above 50%.  Generally, one can afford to accept less on package 
deals, because you don't have the expense of finding and negotiating the 
sale on the additional photos or uses.

I would call the editor and say something like, "Well, I'm happy with 
x$$ for one time rights, but I don't feel very comfortable with the 
possibility of all these multiple uses.  Doesn't this mean that Hearst 
could use my photo as the cover photo on a best-selling book and in 199 
different magazines, and I'd never get anything more?  Etc.  ...  Well, 
I can see why you need to be able to reuse the photo in all these 
various ways, but I really feel I need some addition compensation for 
the additional uses.  What can you do for me on that?"  With a little 
luck, the editor will say something like, "Well, we do sometimes do 
things that way.  We have a standard fee schedule I can fax you."  If 
not, you propose your own.  As always in negotiating anything, you need 
to have decided your basic cut-offs ahead of time.  That is, you need to 
know at what point you must say "no."  

By the way, I'll mention in general for the list -- first, you haven't 
any negotiating ability if you won't say "no."  I figure some deals are 
not meant to be.  I also figure it's even more important to turn down 
deals that I would end up regretting as to find deals I like.  Our job 
is twofold:  1) Identifying and improving good deals.  2)  Recognizing 
and rejecting bad ones.  Also, when you do say "no," you need to do it 
politely, so as to leave open the possibility of working with this 
editor in the future.  Even if you've decided that one situation doesn't 
pay enough, two months later, this editor might be working for somewhere 
else that pays much better.  Or he may end up as your book editor after 
a later incarnation on all sides.  Or your agent.  Or vice versa.  The 
world is amazingly small.  

My guess is that Hearst really needs some minimal electronic rights to 
use the photo with the article it appears with in their own web site.  
The language isn't optimally clear.  For example, can the article with 
your photo be liscensed to other web sites?  I would alter this language 
to something like:  "the Author further grants Hearst the nonexclusive 
electronic right to use the photo on their website in association with 
the article by thus&so on thus&so."  If Hearst needs more, they'll say 
so, and you negotiate from there.

Some publishers have more than one form of a contract.  Back when I was 
writing science fiction, a major SF magazine had a two-page contract.  
The first page was reasonable, and included the basics -- first NA 
serial rights, provisions for editing, by-line, etc., and one-time 
anthology use in a Best-of collection for additional specified pay.  The 
second page seized a whole bunch of additional rights and had a blank 
for the signature.  Contract-savvy people called it the "rip-off" page.  
It "ripped off" a whole lot of rights beyond what was standard in the SF 
field at that time.  If you knew what you were doing you just "ripped 
off" the second page and signed your name in the margin at the bottom of 
the first.  The contract was actually designed to simultaneously take as 
many rights as possible from the naive, while requiring only what was 
standard for the field from those in the know. 

You may be able to get extra pay for electronic rights and quite 
possibly won't.  It's a myth that these rights all have separable 
values.  I believe in most cases, when we deal with publishers who have 
electronic versions, we will (increasingly) need to accomodate them on 
electronic rights, and the overall compensation of the package deal is 
either worth it to us, or not.

Hope this helps.  Good luck.

Carol Deppe
Author of BREED YOUR OWN VEGETABLE VARIETIES:  THE GARDENER'S AND 
FARMER'S GUIDE TO PLANT BREEDING AND SEED SAVING (Chelsea Green, Dec. 
2000)  (See table of contents, excerpts, & reviews at 
www.chelseagreen.com.)  

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