Overview: In addition to publishing Slate Magazine, Microsoft Corporation also sells software.

Slate Magazine is an on-line magazine produced by Microsoft Corporation.As this issue of the Monitor was nearing completion, we received a response from Slate, included at the end of this page.

The Microsoft/Slate contract appears to have been intended originally for writers, but is now being used with artists. Such a contract is not always in the artist's interest; some of the reasons are listed below.

NOTE: In this contract, Microsoft Corporation is the client. Slate Magazine is the publication in which Microsoft intends to use the artwork, but under this contract, Microsoft can publish the artwork elsewhere, for a smaller fee. See below.

Contract Highlights:

=> KILL FEE -- Similar to Herring Communications. If the "Material" (artwork) is not published in Slate "for any reason", Microsoft will pay a 50% kill fee within 60 days of receipt.

See our comments on Herring's kill fee.

=> PAYMENT SCHEDULE -- Microsoft specifies that if it goes ahead and publishes the artwork, it will pay within 30 days of publication. This could create a long waiting period between the time the work is submitted and the time the artist is paid. We suggest that the payment clock start ticking when the artwork is received by client, not when the artwork is published.

=> SYNDICATION FEES -- If Microsoft publishes the artwork in any other Microsoft-owned publications, the artist is paid 25% of the original fee. It appears that this is meant to refer to reprint rights--where the artwork has first been published in Slate; in this case the 25% payment would be in addition to payment of the full original fee. Unfortunately the contract language is not clear on this point.

=> THIRD-PARTY PUBLICATION -- Microsoft has the right to "publish through third parties", and to "license publication rights... to any third party..." Microsoft can do this without the artist's approval, and will pay the artist 50% of the license fee it receives. Again, the contract is unclear on what payment will be made if the artwork has not first appeared in Slate prior to being licensed to a third party.

NOTE: The question of licensing artwork to a third-party is complicated. Briefly, however, we recommend that the right to license artwork to a third party NOT be included in a contract unless the basic elements of the third-party license are spelled out. In general, when a third party acquires rights to use artwork, the third party should be under the same copyright limitations as any other client, and the artist should receive the same fees as with any other client.

=> MODIFICATIONS TO THE ARTWORK -- Microsoft gets the right to "edit...the Material." This language must have been intended for use with written material. Traditionally, a publisher has the right to edit written work. The right to modify artwork, however, ought to belong to the artist. One solution is to insert a phrase that gives the artist the right to make suggested modifications, or to approve modifications made by the client. Another possibility is to define "editing" as "cropping and sizing only."

=> ADVERTISING -- The artist's "name, biography and likeness" can be used "in any related advertising and publicity efforts." Will the artist be endorsing a product?

=> MORAL RIGHTS -- The artist "waives all moral rights" with respect to the artwork. A full explanation of moral rights can be found in the Guild Handbook, and we strongly recommend that you read it. Briefly, moral rights are personal rights of creators in their original (not reproduced) works, regardless of the sale or transfer of copyrights.

Four specific rights are included:

- the right to protect the work from modifications that would harm the reputation of the artist;

- the right of attribution, so that authorship is acknowledged;

- the right of disclosure, to control presentation of artwork to the public;

- the right of recall, to withdraw or disavow a work if it is changed.

Does Microsoft really need to make this demand?

Updated News: SLATE'S RESPONSE

When GAG informed Slate that the Monitor would be reviewing Slate's contract, Rogers Weed, the Publisher of Slate, sent the following response, included here in its entirety.

"Thank you for your letter dated June 1st. We consider the contract terms of Slate with our contributors a private matter between the magazine and the people with whom we do business.

We have no other comment on your review, but appreciate you giving us the opportunity to respond."

We at the Monitor are not surprised that Microsoft/Slate would prefer to keep their contract terms private. After all, if the people with whom Slate does business, namely the freelance artists and writers who contribute work to Slate, begin to discuss those contract terms, they might actually ask for a better contract.

So we appreciate Slate's response, and we intend to continue to inform our subscribers all about Slate's contract.