Besting bad contracts

By Hillary Rosner

One of the biggest mistakes a freelancer can make has nothing to do with pitching or interviewing or how to structure a story. It has nothing at all to do with the actual craft of journalism. It involves the contract.

It's happened to the best of us. We're excited to have landed an assignment, so much so that when the contract arrives, we eagerly sign it — without actually reading what we're signing. Or, if we do read it, it doesn't occur to us to amend it; all we're interested in is the deadline, word count, and fee.

The thing is, contracts are incredibly important. They lay out what happens if the piece is killed and what kind of legal and financial risk you might be assuming. They dictate whether you're retaining the copyright to your work and what kind of compensation (if any) you'll receive if a publication sells your story to a sister publication, a foreign edition, or even for TV or film development.

What's more, contracts are not set in stone. There is no harm in asking for changes. No one is going to revoke an assignment because you ask to alter the wording of the contract. It may be that the publisher simply won't budge. Until, that is, enough writers make a fuss — so it's always best to take issue with anything unfair. Mark Schrope has some great tips on how to negotiate a better contract in Chapter 21 of The Science Writers' Handbook.)

Even if the contract turns out to be non-negotiable, you still have options: you can opt to bow out of the assignment. That seems drastic, but I guarantee you that exercising free will can be empowering — lost paycheck notwithstanding.

What to watch for: indemnity and rights

Endless crazy things show up in contracts. I recently saw (and successfully changed) a clause stating that if the magazine killed my story and paid only 25% of my fee, I was nonetheless barred from reselling the story for three months. That's absurd. I would never sign such a thing, and neither should you.

More often, the pitfalls lie with indemnity clauses. These are how publishers try to cover their asses. They basically say that in the event of a lawsuit over your work, the publication will take absolutely no responsibility, won't go to bat for you, and won't shell out a dime on legal fees. An indemnity clause reads something like this:

You shall defend, indemnify and hold harmless [publication X and its parent company] from and against all claims, losses, costs, settlements, suits, demands and liabilities of every kind, including reasonable attorneys' fees and expenses, arising out of or incurred by reason of the inaccuracy, alleged breach, or actual breach of any representation, warranty, covenant, agreement, or undertaking made by you herein.

In other words, you, the lowly writer, agree to put everything you own — your life savings, your house, whatever — on the line while the deep-pocketed corporation that already has lawyers working for it risks nothing. The corporation trusts you enough to publish your story and sell advertising against it, but not enough to take any associated financial risk.

Always, always, always ask to strike the indemnity clause from the contract. As a general rule, I won't sign a contract with an indemnity clause — at least not this extreme type. A paycheck of a few thousand dollars is hardly worth risking everything I own, however slim the chance of an actual lawsuit or related fees. I've occasionally turned down work because of a non-negotiable indemnity clause. I've also negotiated for a less-egregious version of the clause. A reasonable indemnity clause looks something like this: You agree to indemnify the publication

from any and all judgments finally sustained by a court, after appeal, for any actual breach of obligation made hereunder

Instead of you being solely responsible to any crazy person who complains, you are responsible when you actually screwed up and it's been proven by a court. That seems a lot more sane and fair.

The other thing to pay close attention to is rights. Contracts are generally either "work made for hire" — in which you give up all rights to the article — or "first serial rights," which means that the publisher has exclusive rights for a set period (generally 90 days, but this too is negotiable), after which the rights revert to you. The publisher may retain "nonexclusive" rights after that, which means both you and the publisher can resell or republish the piece.

As a writer, your copyright is really all you have. Why would you give it away? I avoid signing "work made for hire" contracts whenever possible. Publishers often have two versions of their standard contract and will send you the "bad" version first, on the assumption that you'll blindly sign it. Always ask for the "good" version, the one that gives exclusive rights only for a set period of time.

The best approach to negotiating contracts is to be as professional as possible. Your editor isn't trying to screw you over. In fact, chances are she isn't even aware of the exact terms. Explain as clearly and diplomatically as possible what you want to change and why. But don't apologize. This is a business transaction, and your job is to get the best possible terms for yourself as a professional. Decide beforehand what you will and won't accept. It will make your negotiating position stronger.

Hillary Rosner reports on environmental issues for publications including National Geographic, Wired, the New York Times, Men's Journal, and High Country News. She is also a contributing editor at the website bioGraphic.

Image credit: Wiertz Sébastien via Flickr/Creative Commons