Fair Contracts Tip Sheet

Reading and thinking about your contracts as a freelancer is probably the most boring thing you’ll have to do in your daily work. But it’s worth spending at least part of your time on negotiations over pay and contracts, not just for your own bottom line, but for your welfare.

Other folks have thought about these issues in the past. For NASW posts on both pay and contracts, see here, here, and here. You can see examples of contracts for books, magazine articles, radio pieces and more in the Fine Print database. Also check out the NASW glossary for more on the basics of contracts here.

In the meantime, if you have a contract in front of you, keep in mind that four main topics tend to come up in contract negotiations. Things to look out for are rights, compensation, warranties/indemnities, and a few extra things here that might come up as well. You will see below examples of good and bad language, including some phrases that other freelancers have successfully used in their negotiations.

Keep in mind that the perfect can be the enemy of the good: Prioritize your non-negotiable points, and be open to compromising where necessary. You might find that your client gives you a vendor contract that has nothing to do with writing, and you might be able to suggest a writing contract. Or you might be looking at a brilliant contract where the only thing you need to do is sign at the bottom. Still, you have to read it. Here are a few things to know.

Please note: You are free to choose whether to use any or all of the sample clauses in this Tip Sheet or in other NASW posts, or to reject these clauses entirely. It is completely voluntary. These phrases are not approved by NASW or its lawyers. It’s up to you to figure out what you need and what you can tolerate in a contract. Some editors might have no idea that the contracts they are offering freelancers are unsatisfactory. It never hurts to ask to see if you can get to better terms.

Areas and terms of concern. Click on each term to learn more about what you should watch out for and solutions you should consider.

Rights (copyright, reprint, work for hire)

Examples of fair copyright terms that you might request

  • Fair example #1: "Author owns the copyright of the Work, and hereby grants to Client the exclusive right for 90 days after publication and the non-exclusive right thereafter to print, display, or reproduce the Work as follows: in print, digital, or mobile media either compiled with other Client works or by itself. Client may syndicate the Work but Client shall pay Author a [x] % syndication fee, which means [x] % of the net receipts earned when the Work is sold individually to a third party for republication."
  • Fair example #2: "Author grants to Publisher the exclusive rights to print, publish, distribute, sell and license the rights to any and all editions and/or formats of the Book, in whole or in part, in the English language. Author grants to Publisher the non-exclusive right to Electronic versions of the Book. This grant of rights shall in no event be deemed to be a grant of audio-recording rights, which are reserved by the Author. These rights shall be granted to the Publisher for a period of [x] years from date of this agreement."

What makes these types of copyright terms fair?

It is important to pay attention to the terms of copyright. The writer should not have to forgo all control over his or her work. It limits the ability to incorporate the piece, or elements of the piece, into future articles, books or collections, and to use the “own work” as examples in the classes the author teaches or talks given. If the client insists on “work made for hire,” it means the client owns the copyright, and can use it however they please. In this case, the writer should consider retaining a royalty-free license over the work, beginning after a reasonable exclusivity period. In addition, the author should consider the inclusion of a fair syndication fee.

Compensation (kill fee, payment terms)

Kill fee: Example of bad wording

"If Client deems the Work unacceptable for publication in its sole discretion, Client shall pay Author a kill fee of [x] in lieu of the publication fee."

Examples of fair kill fee terms that you might request

  • Fair example #1: "In the event that the Author delivers the Work on time, and Client ultimately does not accept Work for publication, the Author will be paid a kill fee equal to [x]% of the agreed upon fee for the Work, and the rights assigned to the Client in relation to that Work revert back to the Author. If the Author delivers the Work on time and the Client does not publish the Work within one year, the Author will be paid a fee equal to [x]%, and the rights revert back to the Author."
  • Fair example #2: "If Client deems the Work unacceptable for publication due to insufficient quality, Client shall pay Author a kill fee of [x] in lieu of the publication fee. If the Work is rejected for reasons unrelated to quality, Client shall pay Author [full fee]."

What makes these types of kill fee terms fair?

Ideally the kill fee will not be invoked, but it can occur for reasons beyond the author’s or the client’s control. The client has the right to terminate the contract if the author violates any term of the contract, so it’s only fair that the converse is true. If the client doesn’t fulfill their contractual obligations, the author should be able to terminate the contract with payment for the services performed.

Warranties/indemnities

Examples of bad wording

  • Bad example: "Author agrees to indemnify, defend and hold [client], its affiliates, successors, assigns, and licensees and their officers, directors, employees, contractors, and agents (“Client Indemnified Parties”) harmless from and against any and all claims, demands, or causes of action alleged against the Client Indemnified Parties arising from any actual or alleged breach of Author’s representations, warranties, covenants or other agreements made by, or obligations of, Author hereunder."

Examples of fair indemnity/warranty terms that you might request

  • Fair example #1: A contract that has no indemnification clause.
  • Fair example #2: "Author agrees to indemnify, defend and hold [client], its affiliates, successors, assigns, and licensees and their officers, directors, employees, contractors, and agents (“Client Indemnified Parties”) harmless from and against any and all claims, demands, or causes of action alleged against the Client Indemnified Parties arising from any actual breach of Author’s representations, warranties, covenants or other agreements made by, or obligations of, Author hereunder, provided that such liability is finally established by a court of competent jurisdiction and that such judgment is sustained after all appeals have been exhausted … or any actual breach proven in court."

What makes these types of indemnity terms fair?

Ideally, there should be no clause that says the author promises to indemnify, defend and hold harmless the client against any breach or alleged breach of the warranties. The author can, however, “provide warranties, and agree to cooperate fully with the client in relation to any concerns, claims or legal action that arise from the publication of the work.”

A writer can promise to uphold the highest journalistic standards by signing warranties in the contract. However, it is unreasonable to assume that this will prevent frivolous lawsuits and accidents. For example, if a reader claims that the medical advice given by a source quoted in an article harms them, he or she might sue the publication. The writer should be involved in this lawsuit, but should not be responsible for 100% of the fees. Publishers carry liability insurance to cover these lawsuits, and freelance writers generally do not.

Alterations to work

Examples of bad wording

  • Bad example: "Client retains the right to edit or otherwise revise and adapt each Work and to provide a title of Client’s choosing without consulting Author."

Examples of fair alterations to work clauses that you might request

  • Fair example #1: "Author hereby authorizes Client to revise and edit the form and/or the contents of the Work. Client may not adapt, transform, condense, or abridge the Work."
  • Fair example #2: Delete "without consulting Author" and add "Client will provide the edited version of the Work sufficiently in advance of publication so that Author may correct any factual errors."
  • Fair example #3: "Client may ask Author for up to three rounds of revisions. Client will provide fact-checking and will double check materials and fact-checking to Author."

What makes these types of alterations to work terms fair?

Without these types of clauses, the publication is able to repackage the author’s work as if he or she never existed. If the byline is maintained, this can damage the writer’s reputation. If the byline is cut, the client receives all credit and the earnings for research they did not do.

Other resources

The Authors Guild issued a series of Fair Contract recommendations. The Science Fiction and Fantasy Writers of America contracts committee has posted model magazine and author contracts. Those models are nominally for fiction, but include notes on nonfiction as well.

October 18, 2017

Drexel University Online

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