5 Red Flags to Look for in a ContractBy Geoff Williams December 12th, 2016
I’m not proud to admit it: During my 20 years of freelancing, when I’ve been stuck in the rush of Deadline City, I’ve skimmed contracts. On rare occasion, I’ve even signed them after turning in my writing. (Please don’t tell anyone.)
But when freelancers do that, they’re playing with fire. After all, contracts are designed to protect both the publisher and the writer. Whoever wrote up the contract designed it to ensure a positive experience for your client during and after the writing process. We owe it to ourselves to take a good, hard look at it to make sure it protects us too.
We also are helping out our fellow freelance writers. If one of us pushes back and gets a contract changed, that may make it easier for other writers to negotiate in the future.
But what to look for? In the midst of all that legalese, there are often a few key areas to pay particular attention to. Here are five of them.
1. Non-compete clauses
Non-compete clauses usually mean that the publication doesn’t want you writing directly for a competitor for days or even weeks after your work appears. That’s usually reasonable. For instance, if an obscure trade publication survives by offering its readers new material that they can’t get anywhere else, you aren’t helping their cause if you give that same material to their competitors.
The problem is that some non-compete requests aren’t reasonable, even if they seem like it on the surface.
Judi Ketteler, a freelance writer in Cincinnati, Ohio, discovered that last year, when a content agency that she had worked with for years decided to change the wording in its contracts. Ketteler found some language that made her uneasy, like, “freelancer will not approach nor compete for any client’s accounts without prior formal consent . . .”
Ketteler thought that was mostly sensible. As an agency owner, you wouldn’t want a writer taking money out of your pocket by approaching your client and saying, “I’m writing a lot of articles for you—who needs this agency anyway?” But she was worried about one word in particular: “any.”
“What if I unknowingly went after one of their clients?” she asked. “I didn’t do work for all of their clients and didn’t even know who all of their clients were.”
Even worse, the contract also read: “This agreement applies to the freelancer as an individual and also to any other company, partnership, employee relationship, contracted relationship, or similar that freelancer enters into.”
Ketteler writes for a lot of agencies. If this company was Agency A, what if Agency B, completely unbeknownst to Ketteler, poached one of Agency’s A’s clients? Ketteler could be blamed.
So she did what all writers should: She asked for the language to be changed so if the scenarios she imagined did happen, she wouldn’t be held responsible. And the agency agreed.
A lot of writers give away the rights to their writing. That is, they get money for writing a piece of work and aren’t allowed to re-sell it anywhere else. As Ketteler said: “I’m not obsessive about rights. Most of what I do is all-rights and work-for-hire.”
A good rule of thumb, however, is that the more time it takes you to write, such as a book or a lengthy feature, the more you should consider making sure you own the rights to the work after a period of time.
“For many writers, the copyright of an article may not be a huge deal, and as a working writer agreeing to not have ownership over your work may be the only realistic way of getting a paycheck. And, honestly, articles tend not have a very long shelf life,” said Oz Czerski, a licensed entertainment attorney in Los Angeles.
But that isn’t to say you should always give up your rights. “An article, if featured in a prominent enough publication, can be adapted into a larger work,” Czerski said. “It does happen, and the potential fees from this can be large, so really it is a balancing act.”
A lot of whether you think this is worth fighting for is predicated on common sense. I’m no lawyer, but if you’ve written something titled, “8 Ways to Healthier Skin,” you’re probably not missing out on future TV and movie rights. But if it’s an article you’ve spent months on and you could imagine it being turned into a feature-length film directed by Martin Scorsese, it’s worth fighting for ownership rights.
Sometimes articles turn into nightmarish experiences. Maybe you’re working with several editors who all have different ideas for what they want. Maybe there’s a client in the mix too—perhaps a client-corporation with several executives who are going to have their say on what you’re writing.
In that case, you’ll probably want to add something in the contract that states you will be paid more money if there are more than one or two rewrites (or that you will not be held responsible for more than one or two).
I know plenty of writers who have turned in exactly what the editor asked for, only to have the editor tell them that the scope of the project has changed, so, hey, would you mind rewriting this for no extra money? If you’re desperate for your paycheck and there’s no language in the contract protecting you from this, you might agree.
Paying attention to revision clauses becomes more important if you expect to put a lot of time into a project. If you’re going to spend months or years working on something, you want to have guidelines on rewrites and additions spelled out in the contract.
I’ve written four corporate histories, including a history book on a local hospital and another about a manufacturing plant. For two of these books, the clients decided they wanted to add a few chapters that totaled around 10,000 words and required interviews scores of additional people. If I hadn’t made it clear in the contract that extra work would entail extra money, and if these clients had been greedy and mean, I could have been in quite a bind.
If you’ve signed a lot of contracts without really reading them, you may have agreed to something that probably will send shivers down your spine: the indemnity clause. The indemnity clause says that if you’re sued by a disgruntled reader who didn’t like what you wrote, you’re the one who will be held liable for the court costs—not your publisher.
If you think your article may upset certain parties—particularly ones with money and time for expensive lawsuits—you may want to rethink agreeing to a contract that has the clause or get liability insurance.
Kimberly Barnes, who has her own copywriting firm, ContentPark, said that she recently had a potential client who wanted her company to sign a contract that included this language:
“ContentPark agrees to indemnify, defend and hold harmless Client and Client’s employees, officers, directors or agents from and against any loss, liability, damage, penalty or expense (including reasonable attorneys’ fees and cost of defense) they may suffer or incur arising out of any claim…”
For Barnes, whose content firm does ghostwriting, this simply wasn’t acceptable.”We produce an article and hand it off to the client. What the client does with it after the delivery is up to him or her,” she said. “A company could publish it as is, or it could make serious and substantive changes to the piece.”
It could be those serious and substantive changes that ultimately trigger a lawsuit.
I doubt you’ll need much reminding on this one, but always look at the payment terms. I’m always leery of being paid on publication instead of acceptance, a problem that has become far less of a big deal with digital payment.
Still, if you aren’t careful, you could have an article sit in somebody’s inbox until the end of time without payment. That said, “acceptance” can be a weasel word as well. Years ago, I had an editor take three months before she read my article and thus “accepted” it. Then she approved my invoice, which meant it took another five or six weeks before I was actually paid.
If you’re working on a project that will take months, like a whitepaper or an annual report, it’s often a good idea to be paid monthly or every few months instead of at the very end of the project. That way, you can keep your cashflow consistent without the risk of being pulled off the project at the end without any payment.
Telling an editor that you have concerns about the contract can induce anxiety, but it never hurts to ask. If the publication won’t budge, then decide if you want to go ahead with the article or walk away.
But what you probably won’t hurt is your relationship with your editor. Most of the time your editor wants you to be happy and won’t mind asking on your behalf to get the wording changed. Your editor, after all, probably didn’t write the contract. And you never know. Until now, she may have never read it either.Image by Shutterstock