When I first started freelancing, I eagerly signed every piece of paper that hit my desk. I viewed a contract as the last step in my sales funnel, proof that someone was actually going to pay me for my work instead of just talking about it. I’ll admit, I even did some work based only on a verbal contract.
After four and a half years of freelancing, which have involved a handful of contract disputes—one of which ended up in collections and one in small claim court—I’m considerably more circumspect when it comes to considering my legal rights.
A wiser approach than signing every contract that lands in your lap is to view a contract as a starting point for negotiation, if needed, or at least as a tool to develop guidelines and gain awareness of what exactly it is you are signing up for.
“Once you realize that you can negotiate on something, then you have arrived,” said K.M. Davis, founding attorney of Davis Law Office. “You are a business owner. You are a journalist. Because the worst that’s normally going to happen is that they’re just going to say no. It’s pretty easy to figure out what is non-negotiable or most important to someone.”
“In fact, the very nature of contracts is that they can be negotiated,” added strategic and legal advisor Rebecca Prien, of Counsel to Creativity. “They’re really highly flexible vehicles and meant to document clearly what the parties have chosen in their relationship, and they can be clear about that relationship.”
But just because they’re highly malleable doesn’t mean you’ll always be able to set up a contract that benefits you the most. Some companies view their standard contracts as set in stone or don’t want to go through the hassle of getting a new version approved by their legal department. There’s a good chance your contact isn’t even familiar with the terms of the contract you’re supposed to sign.
However, being aware of what you’re signing means you can make an informed decision if negotiating isn’t as fruitful as you’d hoped. Here is some important background about official contracts and seven concepts freelancers should know inside and out.
About the contract
A contract doesn’t have to be a PDF download. It can be a simple email agreement confirming you’re doing a certain amount of work due by a certain date along for a certain price.
A contract does need to have three things, however: an offer, an acceptance of that offer, and a “consideration,” which means an exchange of value.
“The copyright needs to be in writing because it’s a property interest, and the law only recognizes transfer of property when it’s in writing,” Prien said.
Technically, a contract is not binding unless both people’s signatures are on it, so it’s recommended to not start work until you’ve gotten a signed copy back.
One of the most consistent issues for freelancers is what is commonly referred to as scope creep.
“What I see happen again and again is when the scope or expectation is thought to be one thing, but evolves into something else,” Prien said.
Here’s an example: You’re assigned an 800-word post with one source, and suddenly the client or editor comes back requesting 800 more words, three additional interviews, and a handful of images. An editor once asked me to cover an entire conference that required a three-hour round-trip drive, take video footage of all the speakers, edit the videos, and post them… all for a price we agreed on for a single post.
“You want to make sure there are terms for the project and that you identify a clear scope, and that you create a plan for when things are outside of that,” Prien explained.
That might include renegotiating your rate, resetting deadlines, or even refusing work beyond the original agreement. This isn’t to say you’ll never want to do a small amount of additional work as a courtesy to a long-term client, but having a clear scope means extra work is seen as a bonus rather than an expectation.
2. Research and transcripts
Some contracts require writers to not only provide the article or post they’ve completed, but to hand over copies of research and interview transcripts as well.
If you do not get this clause stricken, make sure the pay you’re receiving covers the additional work you’ll need to do, any assignments you’ll give up by not being able to repurpose content, and the fee for the actual transcript—typically about a dollar a minute.
Confidentiality clauses are put in contracts when brands or publishers want a little bit of secrecy. In simpler terms, a confidentiality provision or non-disclosure provision in your contract means you can’t talk about whatever it is the client deems confidential.
“When I write confidentiality provisions for clients, I like to ask what matters, what specifically is crucial for people not to know, and for how long,” Davis said. “There are some standard exceptions to confidentiality. If it’s widely known, but I’m not the person who made it widely known, then I can talk about it. If I find it out from a third-party or hear someone else talking about it, then I can talk about it.”
Often, publishers don’t want to get scooped before a post goes live, but want everyone to talk about said post once it’s up. In other words, timing issues can vary wildly and need to be taken seriously.
in a world where nothing stays confidential for very long, a realistic confidentiality clause is preferable to an onerous contract with boilerplate terms that few people can reasonably understand.
An indemnification clause in a contract means that you are legally responsible for any losses, damages, or expenses—including attorney fees—associated with your work.
Because some indemnification clauses are so broad, many writers would like a little more protection for damages outside of their control. What happens, for instance, if you write an article and somebody sues you, even if everything you wrote was accurate and well documented?
“Sometimes I will try to change [an indemnification clause] to say, ‘We’ll indemnify you for damages that you incur or losses that come to you because of our negligence or willful mis-action,’” Davis said.
If you do sign an indemnification clause, be wary if a client asks you to do anything that seems illegal or potentially harmful. For example, if a client wants you to include images in a blog post without copyright, it’s possible that the owner of said photos could come after both you and the publisher with a fine.
Some publications have contracts with an exclusivity clause, which stipulates you may not cover a certain topic for a set period of time. If this is a topic that’s a significant chunk of your business, that clause may be a deal-breaker.
Additionally, a non-compete clause might prevent you from working for any direct competitors. If you’ve had relationships with certain people ahead of time, that legalese might be worth discussing. Setting a limit for the clause is also important. Ask yourself whether the project pays enough for you to give up potential projects from competitors during that time period.
Davis said making a client spell out or narrow down this clause can be effective. “Sometimes they’re only concerned with one competitor.”
There are a few key terms to keep in mind to discussing ownership rights for your pieces.
Work for hire, or all rights, means the person creating the work will not own it at any point. This stipulation has to be in writing and has to be agreed upon before the work is undertaken. Work made for hire might pay more than jobs in which you retain some copyright.
FNASR stands for First North American Serial Rights, and allows the publication to print your piece exactly once before it’s published elsewhere.
Non-exclusive reprint rights give you the rights to sell reprints of your article and may be worth negotiating. Selling reprints can be quite profitable and requires very little work. However, if you are writing very time-specific content that will no longer be relevant a few weeks down the road, it may not be worth negotiating.
There are typically three types of payment: pay on submission, pay on acceptance, and pay on publication.
Pay on submission means that as soon as you turn in your assignment, cha-ching! You are immediately paid for your work. Pay on acceptance means pay is meted out after a client accepts a piece, often after a rewrite or two. Pay on publication means you’re paid once the article gets published.
Unfortunately, as I learned the hard way, an article can sit in a file drawer for months, or even years, until it’s posted, delaying your pay even further. This isn’t to say you should turn down all pay on publication work, but you may not want to bank on that money for your rent check.
Speaking of late payment, Davis has a contract tip for savvy freelancers: “One thing that I try to put in every contract is making sure that there’s something in there that says, ‘If I have to come after you to collect, if you don’t pay me, you will pay the cost of collection, attorneys fees, and so on.'”
That may push you to the top of the list if your client has a cash flow issue. Or, conversely, make a client not want to work with you. But either way, it’s always better for you to know your options than just blindly agree to whatever paperwork comes your way.