No More Cruddy Contracts:
Six Rules for More Agreeable Agreements
The average freelancer is probably much more interested in the actual writing he or she does than worrying about the business aspects of a writing career. Consider contracts. Many writers simply accept the language in the contracts they receive because they don't know any better, they're afraid to try to negotiate with a publisher, or they're not sure how to approach the issue. Once you know how to ask for contract changes, however, you're more likely to get the contracts you want.
Rule #1: Don't be Afraid!
You'd think that with a legal background, I'd have no trouble with contracts once I began freelancing fulltime more than six years ago. But the fact that I'd been a lawyer wasn't much help-because I was afraid to even bring it up. I thought if I did, the editor would yank the assignment from me. So for more than a year, I simply signed the contracts I received, and hoped for the best.
That's not the business-like approach you should take with your writing career, and I learned that simply requesting contract changes will not kill a deal. It has more to do with the way you ask...
Rule #2: Be Professional, Not Petulant
Remember the old saw about catching more flies with honey than vinegar? The same goes with contracts. I usually start this type of conversation by saying, "I'm really excited about this story, and am happy to be working with you. But there are a few sections of this contract I'd like to talk to you about..." This is much more effective than saying, "You expect me to sign this piece of garbage? It sucks!" Editors are people, too-and they may have nothing to do with the language that's been offered to you.
Rule #3: Read the Damn Thing
A contract is a binding legal document. I assume you wouldn't sign an employment agreement or a home loan without examining it carefully (or having a lawyer check it out for you.) Take the time to actually read the contract, and highlight areas that are confusing or incomprehensible. Don't just flip to the signature page and affix your name.
If you have questions about what the language actually means, gather more information and ask a lawyer or more experienced freelancer for help. The National Writers Union also has some helpful advice about negotiating contracts at http://www.nwu.org/.
Don't forget that contracts are going to be written for the benefit of publishers. In many cases, they're going to try to grab as many rights as possible...while you as the writer want to keep as much as you can, or be paid handsomely for the rights you do assign. That means that while reading a contract, you should pay special attention to...
Rule #4: Watch for Common Confusing Clauses
While a few contracts are easy to understand, most have at least one-usually more-section or clause that seems designed to confuse. Watch for provisions involving:
* Exclusivity. For example, magazines may want exclusive rights to a story for a certain period of time, maybe 3 or 6 months. But sometimes they want to prevent you from writing about a similar subject during that time for any other publication. Ouch! See if you can get that provision stricken.
* Electronic rights. If you're selling rights to a print publication and they want electronic rights as well, ask for more money to compensate you for those rights. More publishers are offering extra money for electronic rights now.
* Research materials/transcripts/notes. Some contracts demand ownership of your transcripts and other research materials developed in connection with this story. I always strike this language-they're purchasing the rights to the article, not my research, which I may use for another story.
* Indemnification. Be very careful. Many contracts contain indemnification language that requires you to bear the legal and financial responsibility if a claim or lawsuit arises from your actions, like if you libel someone. But some provisions require the writer to indemnify the publisher for "any claim" resulting from a story.
If I've breached the contract, that's one thing-but I can't insure a publisher against bogus claims.
Rule #5: Be Wary of All-Rights Contracts
Sign an all-rights contract, or a work-for-hire agreement, and you'll wave bye-bye to any future income from that work. In the meantime, the publisher can reprint it numerous times, include it an anthology, add it to a database, translate it into French, German, and Japanese, spin it off into a mini-series, or sell it to someone else...and you'll get nothing.
Usually, you'll want to avoid all-rights contracts-you want to sell as few rights as possible, retaining all others. That way, if the publisher wants additional rights-say, the right to include it a book-it will have to negotiate with you and pay for those rights. Depending on the market, the topic and the pay, you may sign an all-rights contract-just keep in mind that once you do, you have no claim to the work.
Rule #6: Offer an Alternative
The contract says one thing. You want another. Suggest different wording instead. If the contract asks for all rights, suggest all rights for a limited period of time-say, 90 days-or for first rights and electronic rights for a specific period of time. Say something like, "if I sign an all-rights agreement, it prohibits me from ever reselling the piece. Can we modify the language so you get what you need but so that I'll be able to reuse the story eventually?" I've found that many editors are amenable to changes like this, especially when I'm willing to work with them to create an agreement that will make both of us happy.
Sometimes explaining why I want a change helps. Say the contract includes a sweeping indemnification clause. I've pointed that out to an editor, and said, "I'd love to be able to keep you from being sued over this story, but there's no way I can do that. I'm willing to accept responsibility if it's proved that I breached my contract, but I can't prevent some nut from filing a baseless claim. Can we change the language to reflect that?"
Sure, sometimes editors refuse to change the contract, and then you have to decide whether to accept the assignment with the contract "as is." But I've found in most cases, editors are willing to make reasonable contract changes, especially when it's brought up in a professional manner.
Freelance journalist Kelly James-Enger is the author of Ready, Aim, Specialize! Create Your Own Writing Specialty and Make More Money (The Writer Books, 2003.) She can be reached through www.becomebodywise.com.