Contract negotiation: getting what you want, gracefully

When it comes to contracts, far too many freelance writers simply sign what they're given, rather than viewing the contract as the starting point for negotiation. Though I've only been a full-time freelance writer for two years, I'm fortunate to have made inroads at major publications in several countries. To be sure, some of my success has been luck and timing, but I believe that more of it stems from being assertive and asking for what I want.

OK, I can hear you saying, "I know, I know, but contract negotiations are scary" or "I'm no good at this" or "I don't know what to ask for." Though I'm not a legal expert, here are a few things I've learned from my work as both an editor and a writer.

1) Assume all contracts are negotiable. Remember that magazines are products, and as such, publishers are inclined to get as much as they can for their financial investment. As a professional writer who runs a business, you should be operating with a similar mindset when approaching contract negotiations. Unless you're happy with what's been presented to you, never sign a boilerplate contract.

2) Have the contract in hand before you start working. Having an article idea approved is nice, but that thrill won't pay the bills — and a deal isn't a deal until the contract is signed. This point might sound obvious, but I recently had an editor say she'd get a contract to me AFTER I'd finished the assignment. (Obviously, I told her that was unacceptable — and she faxed over the contract within two days.)

Larger publications, such as those under the umbrella of AOL/Time Warner, might tell you it will take some time to prepare your contract. But if you don't see the contract before you start working, your opportunity to make changes is lost forever. (And if an editor should back out for any reason, the work you've done without a signed contract will have been done for free).

Negotiating a good contract is especially important on that first assignment with a new (to you) magazine, since what you sign now may affect every one of your future assignments with that company. Even if you have a verbal agreement with an editor, he or she might be gone by the next time you craft your next pitch.

3) Don't view editors as adversaries. Though you might feel outraged by the contract, don't take it personally. Contracts are drawn up by publisher's legal departments; editors are simply a public face for the magazine. Don't take your frustrations out on them.

I remember one particularly unprofessional writer who literally shouted at me that he'd complain to the American Society of Journalists and Authors, the National Writers' Union and other writer's organizations about the contract I'd given him — BEFORE he'd even outlined what he wanted to change and asked me what was possible! In business, attitude counts — a lot.

Writer Margaret Littman, whose lengthy publication credits include Weight Watchers, Marie Claire, the Chicago Tribune and Glamour, says the best way to get what you want is to convince yourself that negotiating is no big deal. "If I believe that, then when I talk to an editor about changes, I don't get nervous. When I say to an editor, 'Oh, I usually change that particular paragraph and most editors don't have a problem with it, I assume that's okay,' it usually works. Even if I am outraged by a contract, I try not to say so, I just explain why it doesn't work for me," she says.

4) Decide your deal-breakers. On first read of a contract, though you might be tempted to take a black marker through the whole document, that's probably not realistic. (Though I did recently manage to cross out nearly three pages worth of clauses on a five-page contract for Shape UK.) In contracts, as in life, you're not likely to get everything you want. The goal here is to make your contract workable so that you gain some ground.

Networking with other writers and joining writers' groups such as ASJA and NWU can help you find out what other writers have been paid by publications and what sorts of contracts they've signed, but ultimately you'll need to decide what's important to you.

Know ahead of time what you'll do if an editor says no to your requests, says freelancer Robert Bittner, who has written for American Profile, The Writer, Preservation, Family Circle and other publications and who currently is working on his fourth book. "If an editor is willing to lose you because she swears she absolutely cannot change a word — and those words aren't words you can live with — you have to be willing to walk away," he says.

Of course, your personal line in the sand may change slightly from one assignment to another. "Mine depends on the magazine, the assignment, the pay, and the editor," Littman says. "For example, if an editor is giving me three months to research something that is important to me, I'm going to be a lot more flexible than if they want something in one week on an assignment I can take or leave."

5) Create a personal wish list. What should you be looking for? Here are my top five contract concerns when dealing with magazines:

a) Sign only first serial rights. A contract that specifies "first North American serial rights" (FNASR) means that the magazine has the right to publish your story only in North America. However, the contract may also state (usually further down) that the company also has the rights to republish your work elsewhere — for free. Read this language carefully, unless you don't mind if your work appears everywhere from Antwerp to Zimbabwe without additional compensation. Even if the magazine is owned by a small company, in this day and age of media takeovers, the next parent company might very well have publishing concerns in other countries. The biggies, like Hearst and Conde Nast, have media throughout the world. Generally, I try to cross out the reprint paragraph. If that's not possible, I try to change the wording to allow the publisher the nonexclusive right to permit reprints of the story, for which I receive 50 percent of the fee the publisher receives.

Alternately, a contract may specify that your article is a "work made for hire," which means you complete the job and wash your hands of it. You retain no rights to either the idea or the words, making it impossible for you to resell the story elsewhere or claim money from reprints that a publisher might sell in the future. If you're presented with a WMFH contract, ask your editor if he has a first serial rights contract instead — many companies keep both contracts in the drawer specifically for writers who are savvy enough to speak up.

b) Set a time limit on exclusivity. It's fine for a magazine to ask for exclusive rights to the piece (after all, no editor wants to see your story appear in a rival publication at the same time), but for how long? For Fitness magazine, I managed to change the exclusivity clause from six months to three months after publication, which means I can start shopping the story quickly to other magazines.

You also may want to specify wording that releases you from the contract commitment if the article is not published within a reasonable amount of time. For Bittner, that "reasonable period" usually ranges from 12 to 18 months. He explains: "If a time restriction isn't specified, you may have an article languishing in inventory for two or three years, robbing you of the opportunity to sell the material elsewhere, develop spin-offs,gain reprint income, and add another clip to your portfolio."

c) Request additional payment for electronic rights. I always try to strike out e-rights clauses entirely, but if your editor says that's not possible, request that you be compensated — and suggest a price. I've been able to get 35 percent of the original fee for usage in places including (but not limited to) electronic databases, CD-ROMs and third-party Web sites. (On a $2,000 story, that's potential income of $700). When writing for Gruner+Jahr publications, for example, I've negotiated 10 percent for e-rights just by asking — even though industry watchdogs maintain that the company won't budge on this issue.

d) Include clear wording regarding kill fees. Though many writers believe the kill fee should be abolished, I'm not certain if removing that language would help or harm you if your story is axed. My solution, at least for now, is to increase the kill fee percentage (it's usually 25 percent of the original fee, but I've gotten it up to 50 percent) and/or add more specific language on what constitutes reasons for killing a story. For example, I've specified that the kill fee applies only to unsatisfactory revisions — not planning changes — but admittedly, even that may be tough to prove when an editor has simply changed his or her mind.

e) Insert a hold-harmless clause. There's usually a paragraph at the end of the contract, often under a clause titled "warranty." It usually says the freelancer represents that the work will be original and accurate and will not infringe upon the personal or proprietary rights of or give rise to any claim by a third party. The six words to add are: "to the best of my knowledge" — which means you cannot be held personally liable in the event of a lawsuit. Though I've been successful inserting this language 99 percent of the time, I'm currently in the third round of negotiations with a Conde Nast magazine on this very issue.

6) Prepare for your phone call. E-mail may be ideal for querying, but this is one time when you need to have a conversation with your editor by phone to ensure there are no crossed wires. Hearing your editor's voice also allows you to better control the conversation by adjusting your words accordingly.

Schedule a time with your editor to talk — a quick e-mail to say "when's a good time over the next day or two to go over the contract changes?" usually will suffice. This delay has the added benefit of giving you a cooling-off period if you're upset after receiving a contract.

Before your telephone appointment, make a list of your proposed changes. Script the phone call and practice it to your dog or cat if you're nervous. Take a shower, get dressed (no sweat pants, and be sure to put your shoes on!), and stand up when you dial AND during the phone call. It might sound silly, but you'll sound more confident if you're standing.

Use "I" messages ("I'd like to change paragraph XYZ to include"). Be professional: don't get emotional or interrupt. The more pleasant you are, the more likely that your editor will go to bat for you for your requested changes.

Don't let your personal circumstances enter into the discussion. Your editor doesn't need to know that your rent is expensive or that you have a baby on the way and need the money. Raise such concerns, and you'll immediately lower your bargaining power.

Be aware that most lower-level editors can't make anything more than minor changes without consulting a higher-up, so you probably won't get a resolution during that first phone conversation. Similarly, don't make any rash decisions over the phone. If you need to take a day to think over what you've discussed before coming to a decision, do so.

7) Remember that you're worth it. Whether it's contract details or pay, you can state your displeasure politely without seeming greedy. One of the best tips I've come across is from Ken Wachsberger at the NWU (who learned it from Brett Harvey, now the executive director of ASJA). Both advocate using a great little line to negotiate a higher fee: "That seems a little low to me." Say it slowly, then pause and wait for the editor to respond. These seven words can be adapted to suit any issue at hand — and trust me, they work.

Jennifer Pirtle writes about health, fitness and nutrition for top consumer magazines and is a contributing editor to Freelance Success, where this piece first appeared. She also runs an online mentoring service for freelance writers.

Copyright 2002 Freelance Success. Please do not forward any part of this document without permission.