For freelance writers accepting new projects, it is in your best interest to secure a written agreement that outlines the terms of the project. I know — most of us would rather jump from a 10-meter diving platform than sign a contract. But a little pain over business formalities is better than a long term project from hell that results in non-payment and a lawsuit. Solidifying expectations and defining responsibilities up front will help avoid miscommunications, sidestep problems, and provide guidance on how to navigate issues should any arise.
Contract provisions covering freelance writing projects are similar to the provisions in book publishing contracts, but far fewer, less complex, and written in simpler language. But even though freelance contracts are easier to implement, a contract you signed for one writing project may not suffice for another. Legal provisions, as with any type of contract, vary between projects due to business needs and concerns. All you need to do is be aware of the key contract provisions most freelance agreements include, then adapt each contract to adequately meet your legal needs and concerns for the individual project.
Here are nine key contract provisions every freelance writer should consider before committing to a new project. I have also included an example freelance writing contract you can use for your future projects. But remember, this is only a starting point and you must tailor the contract to meet your legal needs for the specific project.
1. Scope of the Work
This provision defines the nature of the work and what will be published. 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 the scope and expanding the scope past what was previously discussed and you agreed to provide.
It is helpful if the “scope of work” provision contains a plan for when or if 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 — Copyright
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 online? 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 screenplay 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 so, you may lose out on secondary rights because the client is slow to publish.
Once exclusivity has expired, make sure the exclusive rights in the work revert back to you. Reversion of only non-exclusive rights could mean you will compete with the client if you attempt 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 lookout 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:
- “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.
- “The grant of rights is not effective unless and until payment is made in full,” can be added to ensure timely payment for the project.
Revisions are a given. But you need not 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 how to negotiate editorial control provisions for more information.
4. Kill Fees and Expenses
Sometimes, unfortunately, the creative work is never published. A “kill fee” provision will ensure 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. The last thing any writer wants is for the client to change the due date unexpectedly with 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 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 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 of 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 her/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, see my earlier article on warranties and indemnities.
This section should be clear as to what terms you and your client have agreed to regarding payment. Will you invoice the client and when? Do you want payment by a certain date or days after the project has been delivered? Do you want half of the payment up-front and the balance paid later, or do you want installments over a specific time frame? How will you receive payment — check, direct deposit, cash? How much are you being paid? And as discussed above, what changes occur to the payment when the project changes, say in scope and/or with expenses incurred to complete the project?
Termination clauses are like emergency exits in a burning building — if the project is going down, make sure you have a way out. Typically, each party to a contract has the right to terminate an agreement if the other party fails to perform certain obligations or if certain conditions arise. Pay attention to the termination provision and make sure it includes the necessary mechanisms by which the parties can end the business relationship. Do you want advanced notice prior to termination? What are the reasons someone can terminate? Must you return partial payment if the client terminates or you fail to fulfill the obligations required? For more information, see my earlier article about termination clauses.
Below is an example freelance contract you can use for your future writing projects. As I said above, this example contract is a starting point. Make sure you tailor it to meet your legal needs for your specific project. If a client sends you a draft contract first, remember there is no need to sign it immediately. The very nature of a contract is to be negotiated. So consider the first version you receive or send as a starting point for negotiations.
If you want a freelance project to run smoothly, do yourself a favor and understand your legal rights and options prior to signing a 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.
Photo Credit: Drew Coffman | VisualHunt | CC BY
Legal Disclaimer: This information is provided for educational purposes only. Consult a qualified lawyer in your jurisdiction for all legal opinions for your specific situation.
FREELANCE WRITER AGREEMENT
This freelance agreement (hereinafter the “Agreement“) is entered into this ___[add day]___ day of ____[add month]_____, __[add year]__ (hereinafter the “Effective Date“), by and between _____[add your name] _________ , located at ___[add your address]__(hereinafter the “Writer“), and ____[add client’s name] ____________________ , located at _____[add client’s address]_______(hereinafter the “Client“) .
In consideration of the mutual promises contained herein, the parties agree as follows:
- Project and Scope of Work
- Writer agrees to submit to Client _____[describe the project in detail]_____________________ (the”Work”). The manner and method of producing the Work is at the sole discretion of Writer. Client has no right of control over Writer’s manner or method of performance under this Agreement. Writer agrees to conduct interviews and research necessary for the completion of the Work. The Work should be written according to AP style and submitted to Client in accordance with the schedules and deadlines as set forth below.
- Writer grants Client North American publication rights in the English language in the Work for Client’s publication called [add publication]. Client must publish the Work no later than [add date]. The rights conferred upon Client by this agreement shall be exclusive to Client during that time and up to ninety days after the publication of the Work, at which time the exclusive rights in the Work revert back to Writer. If Client does not publish the Work by that date, Client’s right to publish the work under the limited grant of rights set forth in this Agreement shall end and Writer may keep any payments made by Client.
- Client and Writer agree the relationship and the Work created by the Agreement is not a work-made-for-hire. Client is not the employer of Writer, and Writer is not an employee of the Client for any purposes. The Writer is an independent contractor, and nothing contained in this Agreement shall be construed to (i) give either party the power to direct and control the day-to-day activities of the other, (ii) constitute the parties as partners, joint ventures, co-owners or otherwise, or (iii) allow Writer to create or assume any obligation on behalf of Client for any purpose whatsoever.
- Writer reserves all rights not granted to Client in this Agreement. The grant of rights in this Agreement is not effective unless and until Payment is made in full.
- [If you want this to be a work-for-hire agreement then state that the contract is a work-for-hire and that Client owns all rights in the Work. Something like — Writer hereby understands and agrees that the Work created pursuant to this Agreement shall be considered as a work-made-for-hire. Client will own all intellectual property for all Work created under this Agreement.]
- Writer agrees to ________ rounds of revisions. Additional revisions will be $_________/revision round.
- Client has the right to edit, rewrite, condense, abridge, or otherwise change the Work as Client requires. Writer requests the right to see and discuss modifications to the work, as well as the right to approve any and all revisions prior to publication.
- Schedules and Deadlines
- Writer agrees to the following project schedule: [Add schedule if any]
- Writer will submit the finished project to Client no later than ____________[add date].
- Client has a maximum of ______ days to reject the Work as unsatisfactory and must notify the Writer within ______ days of receipt of the Work that additional editing revisions and/or amendments will be requested.
- If the scope of the work changes after the Effective Date, the schedules and deadlines will be adjusted as agreed to by the parties.
- Client agrees to give Writer credit in the publication. Writer also has the right to approve the use of Writer’s persona to promote the Work or publication.
- Client agrees to pay Writer $________ for the Work (hereinafter the “Payment“). Any rewrites due to changes in project scope by Client will cost an additional $_________/hour.
- Client agrees to pay 25% of Payment up front and the remainder upon completion of the project. Writer will invoice Client upon submission of the final draft of the Work. Client agrees to submit the remainder of the Payment within 15 days after receipt of invoice.
- Client will pay by check, direct transfer, Venmo, or PayPal.
- Kill Fees and Expenses
- Work is scheduled for publication by______________ [add date]. In the event that Client decides not to publish the Work as scheduled, Client will pay Writer $________ kill fee and any expenses incurred. All rights will revert to Writer once Client pays the kill fee.
- [Are there any expenses to be reimbursed or added should the scope of the work change? Or are these expenses covered already under the Payment?]
- Writer shall be responsible for the reporting, deposit and payment of any and all federal, state, and local taxes, including but not limited to income taxes, FICA taxes, and unemployment taxes incidental to the performance of, or payment under this Agreement.
- Warranties and Indemnities
- Writer represents and warrants that Writer is the sole author of the Work and owns all rights granted to the Client under this Agreement. Writer represents and warrants that the Work is not owned by any third party, that the Work has not been obtained by unlawful means, that the Work has not been previously published in any manner or medium, and that the publication of the Work by Client will not violate any copyright or other intellectual property rights of any third party. Writer represents they are free to enter into this Agreement and that this engagement does not violate the terms of any agreement between Writer and any third party.
- The receipt and acceptance of Work by Client represents Client’s agreement that the Work is legally suitable for publishing and distribution. Writer is not responsible for any changes or edits made to the Work after Work is submitted and accepted by Client.
- Writer shall indemnify Client and hold them harmless, against all loss, damage injury, and expense, including attorney’s fees, arising out of or in connection with any claim, demand, action, or proceeding for any actual or alleged beach of Writer’s warranties and representations hereunder.
- This Agreement will begin on the Effective Date and shall continue until terminated by either party.
- If either party violates a term of this Agreement, then the other party (the “Non-breaching Party“) may terminate this Agreement, effective immediately upon delivery of written notice of termination by the Non-breaching Party. Not withstanding the foregoing, either party may terminate this Agreement at any time for any or no reason, effective upon thirty (30) days written notice.
- Upon termination of the Agreement, Writer will immediately provide Client with any and all work in progress or completed prior to the termination. Client will pay Writer an equitable amount as determined by Client and Writer for the partially completed work in progress.
- Writer shall not assign any of their rights under this Agreement, or delegate the performance of any of their duties hereunder, without the prior written consent of Client.
- Modification or Amendment
- No amendment, change or modification of this Agreement shall be valid unless in writing signed by the parties hereto.
- Choice of Law
- The laws of _____[add State] ________ shall govern the validity of this Agreement, the construction of its terms and the interpretation of the rights and duties of the parties hereto.
- Entire Agreement and Severability
- This Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter herein and supersedes any prior discussions or agreements between them.
- If any provision of this Agreement is held to be invalid by a court of competent jurisdiction, then the remaining provisions shall nevertheless remain in full force and effect.