Contracts 101: A guide for freelancers

You wouldn’t dream of not invoicing — maybe it’s time to start negiotiating contracts, too


By Richard Knee, Journalist Member, Guild Freelancers

Not long ago, a client publication and I parted ways because the editor/owner insisted he had carte blanche in editing copy.

More recently, I exited a website advertising copy-editing jobs after seeing a stipulation to binding arbitration as the sole means of dispute resolution.

My point: While pay rates and payment promptness count big in the freelancer-client relationship, there’s a cartload of other factors to weigh before signing on a dotted line.

That is, if there is a dotted line. The aforementioned editor/owner shuns contracts. Was working without one a mistake? Yes and no. The pay rate was semi-decent and the company paid me within two or three weeks after getting my invoice. But the absence of a contract meant no moral-rights provision. And other issues could have arisen.

Mike Bradley, a veteran contract adviser and grievance officer with the National Writers Union (UAW Local 1980), notes that a contract “defines your rights and responsibilities and those of your editor and publisher. An undefined relationship, or one you don’t pay attention to, can get you in trouble.”

“Say your contract has no language about rewrites,” Bradley says. “How many rewrites can an editor tell you to do for no additional fee? A gazillion.”

Say the contract is for payment on publication and the editor decides not to publish your article.You worked hard on it, but that doesn’t mean he has to pay you. You may opt to take the matter to small claims court, but bear in mind that will not be possible if your contract requires you to go to arbitration — even though arbitration is likely to cost you as much or more than the fee for the article.

Both Bradley, who is a technical writer, and Guild Freelancer Alice Rogoff, a poet with decades of contract experience, stress the importance of negotiating savvy and of copyrights. Registering with the U.S. Copyright Office usually makes sense, Bradley says.

“Bargaining can be a skill — for instance, knowing whether to ask for what you want the most or to request things that are the easiest to get,” Rogoff says. “The author could have more or less control on the design of a book. Writers without a say have ended up with covers that they find embarrassing.”

When it comes to financials, there could be more to think about than just a single cash payment, including how to get a better advance or higher royalties. For example, if a book sells more than so many copies, the royalty could be negotiated for a higher percentage. The onus is on you, the author, to know the going rate for electronic rights.

So how do you get a good contract, besides writing only for the best publications? That’s easy, says Bradley: You have to negotiate for it. There are no shortcuts.

“Years ago, a writer told me he took off his struggling freelancer hat and put on his assertive agent hat — he made the sale first and worried about how he’d fulfill it later, rather than the other way round. A friend in business told me everybody negotiates everything in business, so why shouldn’t I?” he says.

If you’ve ever haggled at a craft fair, like Bradley, you’ve already got the chops — only now, you’re the craftsman and your publisher is the curious customer.

The craftsman suggests a figure, and you counter with a lower figure. “It’s expected,” he says. Same concept applies to negotiating a fee with a client.

Rogoff also advises checking contracts’ copyright clauses. In most cases, the author should keep the copyright, she says.

Bradley suggests considering registering works with the Copyright Office before submitting them, though he cautions that registration “is a catch-22,” he says.

“Registering before a work is published entitles you to considerable compensation, including attorney fees should you have to sue. It’s very useful if you’ve been infringed, but it’s expensive and can be a monster to use. In practice, you will probably want to register only your most valuable works and ones that are most likely to be infringed. Your registration doesn’t interfere with the transfer of rights to a publisher.”

He also advises against registering works produced under “work for hire” agreements, in which the client takes sole ownership of the material from its inception. He adds, “Don’t agree to WFH if you hope to use your work’s secondary rights.”

Other tips from Bradley:

• Consider signing with the publication you’re actually writing for rather than the parent corporation. Negotiations and mid-project changes might be easier.

• Heed the parameters of the assignment (topic, hook, tone, audience, special adds, format, and so on).

• Pay attention to the rights that you’re selling (serial, web, radio, all, work for hire, etc.; term of the sale – can be important for web articles with long-term value; exclusive vs. non-exclusive – the latter has turned out to be not nearly as useful as we thought it would be); payment (amount, expenses, conditions such as rewrites)

• Heed byline considerations, including copyright notice if you reserved some rights.

• Be very clear about reimbursement of your expenses.

• Deadlines and milestones: If the project is substantial, put conditions on how and when these can be changed, such as adequate time to correct deficiencies and advance notice of cancellation. As regards transfer of rights, you want to hang onto the rights until your customer has fulfilled all its responsibilities. Request payment on acceptance, not on publication, and partial payment for a rejected article, as well as when milestones are met in a long-term project.

• Warranty and indemnification: Your guarantee to write what the contract calls for. Otherwise, you’ll pay a penalty; you might even cover the publisher’s costs. Your warranty should cover only what you can control. And try to limit the maximum amount of your indemnification. On long projects, the National Writers Union recommends limiting it to the total amount the writer could earn from the contract.

• Confidentiality clauses should apply only to documents and information labeled as confidential and to material that it’s “reasonable” to determine are confidential, such as secret recipes. You should be held to the clause only for as long as divulging it could do real harm to the customer. You should not be held to it for information made public.

• Non-compete clauses try to keep you from working for a competitor. Courts won’t enforce them except in very special circumstances.