By Lindzi Wessel
Plans for the Fair Contracts Project session took an unexpected turn in the days leading up to the 2015 NASW meeting when meeting organizers discovered that uniting freelancers to develop a standard contract would violate anti-trust laws.
"Anti-trust is about more than price fixing," said NASW executive director Tinsley Davis in the session's introduction. "It is about formal or informal agreements among competitors to influence negotiations and thus the marketplace." Davis went on to say that a bill introduced in Congress in 2002 would have exempted freelancers from this application of the Sherman Antitrust Act. The bill did not pass.
Despite the change in agenda, the session was jam-packed with contract content. Intellectual property lawyer Ed Klaris led attendees in an effort to "demystify" legal terms and clauses critical to freelance agreements. Klaris reminded the group that a freelancer's contract determines a lot more than frees and deadlines. He pointed out key clauses can determine how much ownership writers maintain over their work, whether writers could be at risk for liability, and whether writers are compensated with "kill fees" when a project they have been working on is canceled.
Klaris said some writers hesitate to negotiate in fear of losing an assignment, but thinks all writers need to be able to push back somewhat on what they want.
"My experience is that once you've been selected and you've been given a number of dollars you're going to get paid and you've gotten a deadline — the chances of them backing out at that point because you care about what the contract says are pretty slim," he said. He emphasized that professional conduct and clear explanations for desired changes are important to the negotiations.
Klaris discussed a number of ways writers can tweak contracts to enhance benefits and minimize risk. For example, when writers work for hire, the work they produce belongs to the publisher from inception. However, he has found that publishers will often accommodate a request to retain contractual rights to use the work for a writer’s website or other specific purposes.
Writers also may be unfamiliar with what Klaris described as a “paternalistic” nuance of the Copyright act. He told the audience that even if a writer has transferred “all rights, titles, and interest” to a publisher, the Copyright act allows a writer to terminate the transfer after 35 years.
Klaris warned the audience about certain terms, as well. He gave the hypothetical example of words like "transform" and "recast" giving publishers the right to launch a sci-fi movie based on freelance science writing without any obligation to share profits with the writer.
Contracts are full of complicated clauses like these, and Klaris recommends exploring the NASW Contracts Database "The Fine Print" for examples.
With so many complex legal clauses, avoiding exploitation might seem a daunting task for freelancers.
Klarvis suggests a simple first step.
"I want to embolden writers to read their contracts carefully and fully," he says.
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