3 Deadly Freelance Contract TrapsBy Rachel Kaufman February 21st, 2014
Whether you’re new to freelance writing or a grizzled veteran, contracts can be a source of frustration and bafflement. Many of my freelance colleagues just look for the dotted line and sign as quickly as possible, rather than think about the fine print.
Media contracts these days are less writer-friendly than they have been. Maybe your new client means well, but their lawyers are (understandably) afraid of risk, so they spell out every detail in a way that puts you on the hook if anything goes wrong. Here, I’ll identify three major contract “traps” to watch out for.
But first, a BIG DISCLAIMER: I’m not a lawyer. I’m a writer. This article is meant to educate you, but if you have a legal question after reading below, please consult an actual lawyer.
Trap #1 – Who legally owns your work?
There was a time when a magazine or newspaper would not purchase “ownership” of your story; it would buy the rights to publish it—once. Then, you could sell reprints of the article as many times as you wanted, in as many markets as you chose. The Internet kind of killed all of that (see Tasini V. New York Times, a high-profile lawsuit). Now, most media outlets’ contracts specify that you are creating “work for hire,” which means that once you send a piece off to your editor, that publication owns it. You could even be sued for publishing it on your portfolio or blog (though I’ve never heard of this happening).
If possible, ask for your contract to offer a “worldwide, non-exclusive, perpetual” license to the publisher while you retain the copyright. This protects you in the portfolio situation and also gives you the right to republish the piece in the future, such as in a book that collects your best work.
Trap #2 – What happens if you get sued?
Newspapers have libel insurance for their staff, but freelance writers aren’t as well-protected. Many contracts these days include boilerplate that sounds like this:
“The Writer shall indemnify and hold harmless, including the payment of attorney’s fees and costs through trial and one or more levels of appeal, NEWSPAPER NAME, its affiliates and its directors, officers, employees, agents, successors, assigns, licensees and distributors against any and all claims made or judgments paid or incurred in connection with claims by any party which arise from use of materials originating with the Writer.”
This complicated bit of legalese means that if the newspaper gets sued because of something you write, you’re on the hook to pay their legal fees—even if it’s a frivolous lawsuit. You can ask to have the clause removed or see if you can agree on language that indicates you’ll only have to pay if you were truly at fault, or limits the amount of liability you can pay to the amount of the contract (so you can’t lose your house over a $500 article).
Trap #3 – When and how do you get paid?
It should be simple, but check carefully to see when you’ll actually receive your payment. Some companies pay by direct deposit or Paypal as soon as you file a piece (hi, Contently). Some say they will pay by check “on acceptance,” which means once the editor has signed off on your draft, your invoice goes to bookkeeping. Some pay “on publication” or 30 or 60 days after publication, which means you could be waiting a very long time, especially when old-school media companies with drawn-out editorial timelines are involved. Make sure the contract specifies when you should receive a check, how much the payment will be, and whether you’ll get a portion of the agreed-upon amount if your article is never published (sometimes called a kill fee).
If you’re working on the corporate side, the contract should point out the times at which you’ll get a portion of the full amount. For instance, you might receive a third up front, a third when you file your rough copy, and the final third just before you’ve sent the final draft.
One final thing. After reading all of this, you might be tempted to just throw out the legalese and proceed on a handshake. But I’ve never heard of this ending well. And think about this: Publishers will see you in a far more professional light when they hear you say, “I’ve got a copy of my contract right here…”