As a freelance writer, it is in your best interest to secure a written agreement with your client that outlines the terms of the writing project. If you solidify expectations and define responsibilities up front, you will avoid miscommunications and sidestep problems, or at least have guidance on how to navigate them if they arise.
The legal provisions of a freelance contract are similar to those in a book publishing contract, but far fewer, less complex, and written in simpler language. It is important to remember that when the client sends you a contract, do not rush to sign it immediately. The very nature of a contract is to be negotiated. So consider the first version you receive a starting point for negotiations.
Freelance contract provisions vary among clients due to business needs and concerns. A contract you signed for one client, may not suffice for another. To help the negotiation process, here are seven key contract provisions you will need to consider before committing to a freelance project.
1. Scope of the Work
This provision defines the nature of the work the client wants to publish. Avoid vague descriptions of the project, unless you want problems to arise. Being specific prevents the client from claiming your work is unsatisfactory as to scope, and the scope from expanding past what you previously agreed to provide.
It is helpful if the “scope of work” provision contains a plan for when the project scope expands. Do you want to renegotiate the rate? Reset the deadlines? Refuse the new work? Provide a certain amount of “goodwill” time for free? Be clear what you want so the contract contains provisions to navigate these problems accordingly.
2. Rights Granted
As with book publishing contracts, the copyright in a freelance article is composed of separate rights that can be sold or licensed together or individually by you. Before entering into a contract with your client, understand what value your work will have beyond the initial publication by your client. Will you reuse the work, maybe in an anthology or as the basis for a book? Will the work appeal to the movie and cable industries?
Here are a few rights you should consider:
a) Right to Publish
Usually, a publisher will want the right to publish once. But not always. Some publishers rerun articles, or have multiple publications. You will want to specify the number and formats. Once in print? Repeat publications? Print and on-line? In multiple magazines owned by the client?
Some publishers request broad language that allows them to exploit the work in all media available. You may be able to limit this, for example, to a grant of rights for print and online publications, reprints, and electronic and digital media.
If you intend to reuse the work, like creating a screen play from a short story, make sure the grant of rights does not include the right to make derivative works, except as needed to edit and use in the formats authorized.
b) Exclusivity and Duration
It is reasonable to give the client exclusive rights to the work before you can publish elsewhere. A thirty to ninety day exclusivity period after the initial publication is usually customary. But give the client a time frame to publish. It should never be indefinite or permanent. If it is, you may lose out on secondary rights because the client is slow to publish.
Once exclusivity is up, make sure the contract language provides for the exclusive rights in the work to revert back to you. Receiving back only non-exclusive rights may mean you will be competing with the client when attempting to reuse the work..
c) Territory and Language
Find out if your client intends to publish the work outside the US and in different languages. If so, ask for more money. If not, then you may want to reserve the foreign rights to sell yourself. Or you can restrict the client’s rights to a specific territory, like only in North America and in English.
d) Works Made For Hire
Be on the look out for phrases like “works made for hire” or “work for hire” in a freelance contract. These phrases mean the client owns the rights to the work exclusively, not you. If this is not what you want, be prepared to negotiate modifications to the scope of rights granted. Ask for an affirmative reversion of rights so you can reuse the work.
Understanding the rights you want to retain will help you negotiate what rights you can give the client. The contract should be clear as to which rights are licensed to the client and which rights are reserved for you.
A couple of catchall phrases you might want to add to your contract:
a) “I reserve all rights in my work that are not granted herein,” can be added to make sure you protect the subsidiary rights you want.
b) “The grant of rights is not effective unless and until payment is made in full,” can be added to insure timely payment for the project.
Revisions are a given. But you do not have to do a slew of revisions for free. Limit the number of revision rounds you are willing to do, and what your fee will be should the client request additional rounds.
It is reasonable for a writer to request the right to see and discuss modifications to the work, as well as, the right to approve any and all revisions. Clients, however, may not be willing to provide such rights given time constraints and need for control of the publication process. See my article on Jane Friedman’s blog on how to negotiate editorial control provisions.
4. Kill Fees and Expenses
Sometimes, as luck would have it, the creative work is never published. A “kill fee” provision will insure you are paid regardless. Often kill fees are a percentage of the original price for the work. Should the client “kill” the piece, the contract language should provide for reimbursement of expenses in full and the rights granted in the work to revert back to you.
Expenses are your responsibility unless the contract states otherwise. Accordingly, these should be factored into the price for the work. Some projects, however, require extensive research and other fees (privacy releases, permission fees, fact-checking fees, etc.). Such ancillary expenses can be agreed to in the contract. Often a budget will be requested from the client. If so, add language that allows for a variance of a certain percentage should there be unforeseen costs.
Make sure the contract is clear as to when a project is due. You do not want to end up in the unfortunate circumstances of a client changing the due date unexpectedly and nothing in the contract to save you from complying.
If you have included a provision in the contract for changes in the scope of the work, make sure you also include a provision to adjust the deadline accordingly.
Often the deadline provision will include a clause for submission of a satisfactory work and the ability to reject the work should it be unsatisfactory. Such provisions are similar to those in book publishing contracts. See my earlier Sidebar Saturdays article on how to avoid unfair delivery and acceptance clauses.
Make sure the contract specifies who gets credit for the work.
If possible, ask for the right to approve the use or your persona to promote the work or publication. Or at least ask for the right to consult with the client. It is your persona, and you should have the right to be involved in how it is used.
7. Warranties and Indemnities
These contract provisions warrant a writer has not violated any laws or ethics in the creation of his portion of the work (plagiarism, defamation, invasion of privacy, etc.). Indemnities are promises of reimbursement should those warranties be false. If you need more information on warranties and indemnities, see my earlier Sidebar Saturdays post.
If you want a freelance project to run smoothly, do yourself a favor and understand your legal rights and options prior to signing a freelance contract. A little homework will allow you to make informed decisions when negotiating rights and reach a solid contract that not only meets the needs of all parties but also avoids misunderstandings and problems during the project.
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