An Offer You Can Refuse
Don't sign on the dotted line just because a publisher has offered you a contract. First, put it to this five-step test to make sure you're signing a smart contract.
In 1995, Dallas writer Sophia Dembling was pleased with the progress of her new freelancing career. She'd already managed to become a regular contributor at Condé Nast's Bride's Magazine. When they wanted her story on the U.S. Virgin Islands, she was thrilled.
There was only one wrinkle. Condé Nast was offering a "work for hire" contract. The publisher would own all rights to Dembling's story just as if she'd been a staff writer; freelancers normally only license limited rights to publishers. Dembling thought about the offer and decided she could rework the material into another piece if she wanted to re-sell it. Rather than argue, she just signed the contract. "Because I was starting out in my career, I was signing blindly," she recalls.
"They said their contracts were non-negotiable."
A year later, Dembling was surprised to find her article appearing in a brochure put out by the Virgin Islands tourism agency. The photographer for the same piece-who had held on to his rights-got paid, but not Dembling. "It didn't occur to me that my story would become a brochure for the tourist board," she says. "No doubt the publisher made more money on the story than I did!"
Dembling fell victim to her own eagerness to make a sale, something that happens to many writers when confronted with a contract negotiation. Her mistake is typical of the contract problems that plague writers at all levels.
You need to be smart about contracts. And any contracts you sign need to be "S.M.A.R.T." -Specific, Measurable, Achievable, Relevant and Time-Limited.
Where many contracts fall down is that they aren't Specific. They don't designate the details of a deal sufficiently narrowly. As Atlanta freelancer Maxine Rock advises, "Assume nothing. Spell out exactly who does what and who gets what."
Sometimes the problem originates with the client. "All too often these days, clients want to throw things at you without really thinking it through themselves or giving proper direction," says Toronto writer Newman Mallon. "They just want to pass [the problem] on so you can think it through, and you can bet there will be many variables they never told you about and you never considered."
Regardless of where the problem originates, it becomes your predicament when you take on a poorly specified job. "Beware of saying 'yes' to a contract without making sure that all three elements of the projects are well-defined: scope, time and money," says Bill Johnstone. The Victoria, British Columbia, writer found himself caught in a vaguely defined project for a non-profit society. "I'm only now finishing the second draft of a 200-plus-page report, more than a year after the initial projected delivery date."
Protect yourself by making sure a contract specifies exactly what's your responsibility and what isn't. You can then decide whether or not to take on additional work and at what price. For magazine work, the "specification" is often the query. Make sure that your story answers the promises made in the query. The same goes for a book based on a proposal. For corporate work, use a detailed estimate as the basis of the contract. Be sure to include review dates, what happens when the client doesn't give you the required feedback when promised, and how many rewrites they get for the specified price.
By creating a series of milestones that can be objectively assessed, you can also make your job Measurable.
In corporate work, prescribed milestones-along with frequent client feedback-let you both know that you're doing what the client wants. When possible, give yourself and your client a checklist that tracks how the job's progressing.
In magazine work, meaningful feedback is seldom available, but it's possible to build yourself a checklist of client expectations. Go back to your query. List exactly what it promised. Carefully review the notes of your conversation with your editor when you got the assignment. (If it's legal in your area, I suggest you tape all your conversations with your editors; it avoids arguments later.) Exactly what was said? Reduce it to a list of goals for the story, not just word count and deadline but what elements you promised would be in the story. What did the editor say she was looking for? Then you can compare your finished story against the promises you gave and the expectations they expressed.
Perhaps the most important criterion is that your contracts be Achievable. Even if your assignment is specific and measurable, it may still be more than you can achieve in the time and on the budget the client has in mind. Santa Clara freelancer David Snellbacher recalls one project that was to be a four month job: "They told me what they thought it would consist of I told them how long I thought it would take and they didn't have the budget." By working with the client, Snellbacher found parts of the project that could be delayed and parts that could be done by existing staff. Together they reduced the scope of the job to fit the available resources.
It's up to you to be clear on your abilities and how fast you can work-because the client won't be. "Most of the time, I don't think people have a really good understanding of how long it's going to take to do something," says Snellbacher.
One of the best things I ever did for my career was to set some financial goals that gave me guidelines by which to measure whether an assignment is achievable. For example, this year, my goal is to bring in $72,000-that is, $6,000 per month, or almost $1,500 per week. Since I get to spend only about two days a week actually writing—the rest is selling, administering and all the other things I need to do to keep my freelance business afloat-I have to make about $750 per writing day. So, when a magazine and I settle on $2,000 for an assignment, my question to myself is whether I can do it in three days. If the answer is yes, I take the job. If it's no, I graciously decline and devote my time to selling to better markets. The job may have met their spending budget but it fell short of my sales budget.
When you're looking for your next assignment, do you consider whether the job is Relevant to your career plans? Is it going to help you go where you want to go? Being in business for yourself-and that's what you are-is a delicate balancing act between satisfying your customers' needs and meeting your own. If your goals keep losing out to your customers' demands, you might as well go on staff somewhere. That's probably not why you decided to be a freelancer.
I failed to keep this rule in mind myself a few years ago. I contracted to write the documentation for what can best be described as a low-tech local-area-network for running factories. The product was dull, the company was dull and, to make things worse, they insisted that I report every day to a cubicle in their offices so they could keep an eye on me. That kind of job wasn't why I went freelance and certainly wasn't a credit that would help me get more of the kind of work I wanted. I suggested they might want to find someone else to take over the project, and got back to assignments that were more to my liking.
Finally, life is limited. There are only 24 hours in each day and, I don't know about you, but I like to spend a few of them having fun! So remember to put Time Limits on your projects.
There are two kinds of time limits. First, how many hours, weeks, months, are you willing to invest in this project? When are you going to be free to move on to the next assignment? Right now, I am facing a second rewrite from one magazine that seems to change its mind with every version I file. Now, for version number three, they're asking me to put back material I took out at their request in version two. Enough is enough. I'm through. I'd rather take- the kill fee and fight them in small claims court for the balance than invest more time in an apparently hopeless cause.
Second, don't forget to address the time limits on how long the client can use your work. Remember, what you're really doing is creating intellectual property and either assigning (selling) it or licensing (renting) it to your clients. Your agreements need to address what happens to intellectual property rights and for how long.
In particular, do your contracts specify a publication deadline? For example, if you have a magazine article with good resale value, it's important to specify the date by which the publisher must get the work on the street. After that date, they can still run your story but you no longer guarantee they will be the first publication to do so. With a book, late publication means you're losing sales. Smart contracts can protect you: Los Angeles freelancer James Joseph, for example, received an additional $15,000 from a book publisher who didn't publish by the deadline specified by Joseph's contract.
Finally, don't forget to be smart in the normal sense of the word. Use your head.
On important projects, particularly books, always have a professional review the contract. "Most writing contracts, especially for books, motion pictures and TV, are boob), trapped," says Joseph. "If you don't know the traps when you read them, hire someone who does-not just any lawyer, but a lawyer specialized in literary contracts."
The Author's Guild has a free contract review service for members; if you've been offered a mainstream book contract, you probably qualify for membership. Alternatively, the Author's Guild, the American Society of journalists and Authors (ASJA) or a writer's group in your area can refer you to a lawyer who understands publishing contracts.
And never let your eagerness to make a sale make you short-sighted. As Buffalo, New York, writer and lawyer Sallie Randolph notes, "Sometimes the best contract is no contract. There are snakes in the grass out there. When you get an indication someone is unethical, it's hard to protect yourself, even with a good contract."
Silicon Valley lawyer Cem Kaner agrees, saying much of his business comes from people who don't listen to the little voice in their head that tells them a particular contract is bad news. "They know the situation is impossible," says Kaner, "or the person they are working with is unethical in some way-and then they take the job anyway.
"Then I get to make money from it."
That's money some SMART dealings could have left in your pocket instead of your lawyer's.
Tim Perrin has been writing for a living in one form or another virtually all of his adult life. He has published several hundred magazine articles and five books, including one on writing (Better Writing for Lawyers, 1989). Tim has been teaching adults since 1975 for such schools as Simon Fraser University, the University of Victoria, several community colleges and in seminars across Canada and the US.
His passions are screenwriting and book-length "new journalism" non-fiction. His current project is a book on taking charge of your life. California born and raised, Tim has lived the last 25 years in Canada. He and his wife live by a little lake in the beautiful Okanagan Valley of British Columbia. Tim is the executive director of www.WritingSchool.com.
© 2012 WritingSchool.com All Rights Reserved. As published in the March 1999 issue of Writer's Digest. Used with Permission.