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Wednesday, March 9, 2011

5 Contract Clauses to Watch for--and Change if you Can

Thanks to the 39 people (so far) who have entered my latest giveaway; I'll be addressing many of your questions and suggestions in the future, and will announce the winners on Monday, March 14!

In the meantime, let's take a quick look at a topic that stymies many freelancers: contracts. (Thanks, Kristine and Lisa, for the suggestion.) If you have the opportunity to write your own contract, create one that favors you instead of the publisher.(For example, you might specify that you’re selling one-time rights to a story and require payment within two weeks upon acceptance.) Usually, however, publishers will have their own contracts that they expect you to sign--and that's where things can get sticky.

Pay special attention to contract provisions including:

Work-for-hire/all-rights. During the last decade, one of the hot issues with publishing contracts involved electronic rights, whether it was the right to put a story on the Web and/or include it in an online archive. Those rights are distinct and separate from print rights, so the writer-friendly argument was that publishers should pay additional money for those additional rights. Many writers were able to negotiate for more money, and some contracts even specified a certain amount (e.g., 10%) for the electronic rights to the story. Now, more publishers are simply asking for all rights to work. Understand that when you sell all rights (sometimes called a “work-for-hire” agreement) to a story, you’re precluded from reprinting or reusing that piece every again.

Exclusivity. A common clause in national magazines requires you to agree “not to write about the same or similar subject of the work from the date hereof until six months after the on-sale date of the issue of the magazine in which the work is published.” There are several issues with this clause. First, what if you want to write about the same (or similar) subject in the near future? And what happens if the story gets pushed back again and again? Signing this provision means you could be prevented from covering a similar subject for a different publisher for months and months while you wait for your first story to run.

Indemnification. An indemnification provision provides that you'll defend the publisher if it's sued over something you’ve written. But what if your work is rewritten or edited and factual errors are introduced, resulting in a lawsuit? Then you could be indeminifying the publisher for something you didn't even do! Unfair, and unrealistic.

Also watch for provisions that ask you to indemnify the publisher for “any and all” claims resulting out of the assignment. Think about it. Anybody can sue anyone for anything, and if a reader sues the publisher, claiming that reading your article on foot pain gave him a brain tumor, you’re now required to help defend the publisher. More writer-friendly language is “claims arising out of the breach of this agreement.”

In other words, if you breach the agreement by plagiarizing or libeling someone, for example (nearly every contract has a provision where you assert that your work will not plagiarize or libel someone), you indemnify the publisher. You made the mistake, so you’re on the hook. That seems fair even to me.

• Confidentiality provisions. I've seen a few contracts that include confidentiality clauses that preclude the writer from discussing the actual terms of the contract with anyone. A provision like this hamstrings writers by preventing them from even discussing the terms with another writer—which seems like over-reaching to me. (This differs from common confidentiality clauses where you agree not to discuss the subject of your assignment except as needed—say with sources.)

Research notes and other materials. More contracts are asking that you turn over “all notes, transcripts, and research materials” created while researching and writing the story. This provision is troublesome because you’re selling rights to the article itself (i.e. 1,000 words on how to house-train a puppy), not all of the research that may or may not make it into the story. My opinion? Those are your research materials, not the publisher’s, and I would strike this language.

And how do you change a contract? You have several options.

If you don’t like a certain provision, you can always strike it by crossing it out and adding your initials and date. However, the editor or client must agree by countersigning the change.

I find it faster and more efficient to pick up the phone to negotiate contract changes. Start by thanking the editor for the assignment, but adding that a couple of the contract provisions are problematic for you. (Sound familiar? This is similar to how I ask for more money.)

Then make your case, keeping in mind that she may not understand her own contract (or even have read it.) For example, “I’m looking forward to working with you, but this indemnification provision basically asks me to act as an insurer and I can’t promise that no one will ever sue you as a result of the story.”

Give her a reason to say “yes” to your contract changes. If she won’t give, ask if she can modify the contract to better fit your needs. And if she refuses to or cannot change the contract, then it's up to you whether to take the assignment.


  1. Wow, there is so much to learn. There's a lot of great information here. Have you ever turned down an assignment because they wouldn't change the contract?

  2. Hi, Kelly,

    Thanks so much for all of the awesome information! You're a true treasure to the writing community!

    What about business insurance for writers? (liability insurance, errors and omissions insurance) Is it necessary? What kind of insurance protects a writer best? Would it cover you even if you signed a contract containing these clauses?

    Thanks You!

  3. Hi, Laura--

    Yes, I have turned down work when I couldn't get certain changes. It depends on the overall situation, but if, for example, it's an all-rights contract for not enough money, I will say no. I try toget the contract changed, though, before I turn work down.

    And Anonymous, you're welcome. I don't know a lot about errors and omissions insurance; I looked into it years ago but never purchased it. It would presumably protect you in some of these situations but I think the best thing to do is double-check your work, be careful not to libel or plagariaze anyone (which presumably you wouldn't!), etc. My $.02, anyway.

  4. Such a helpful post, Kelly. Thanks so much for sharing. I've recently tried to negotiate a few contracts and have actually had 2 editors rescind the assignment after I merely asked if they would considering changing something (i.e. all rights to first NA rights). Have you ever had something like this happen? I'm not sure if I'm doing something wrong or if they're just incredibly unprofessional... in both situations, they assigned me a story, sent over a contract and I responded with gratitude for the assignment and a question about the contract. Then, without so much as a discussion, both editors (both at trade magazines) simply took the assignment back. Is this normal? I couldn't believe it!

  5. Kate, thanks for your post. No, I've never had that happen in 14+ years of fulltime freelancing--I think it's ridiculous to just pull an assignment instead of saying, "sorry, that's our contract, take it or leave it."

    I think it's unprofessional of an editor to act like that, actually. Asserting yourself as a freelancer is a sign of professionalism, not prima-donna-dom, after all. Maybe it was good for you that you didn't wind up working with them?

  6. I know you are a lawyer, so maybe you have some advice on putting together your own contract. I'm in the middle of doing that so I can secure relationships with corporate clients. With one client, it was fortunate that they had their own lawyer who could submit their own. But, it won't always be the case that a potential client will have that route. Do you have any tips on putting together a strongly-worded contract that's also client friendly? Thanks!

  7. Hi Kelly,

    Thanks for your response. I totally agree that it's unprofessional. No discussion, no negotiation or, like you said, not even a "Take it or leave it". You're probably right... working for a client like that would've surely been a huge headache. It's strange that it happened to me twice in one month though, and that in 14+ years, you've never had that happen. I must be targeting the wrong places :)

  8. Hey, Kate--
    Sounds like we're on the same page. :)

    Anonymous, I'd write a contract that includes a retainer upfront (if possible); sets out the scope of the work (especially if you're working for a project fee, not charging by the hour); clarifies when you'll be paid (e.g., within 14 days of invoice); and makes it clear that copyright to the work doesn't transfer until final payment is received (that's a clause I just found out another writer uses--very smart). Hope that's helpful. :)