A few caveats: This glossary is intended only to introduce a few important terms and concepts. It is not comprehensive; nor does it constitute legal advice. We are not attorneys and are not licensed to give legal advice. For more complete discussions, consult the references section. If you are planning to write a trade book, we strongly recommend contracting with a book agent to negotiate with the publisher on your behalf. That said, it is good to become familiar with the major issues encountered in evaluating a contract. Even if you hire an agent or a publishing lawyer, you should have a reasonable grasp of where your own interests lie. Also, it is your right to hire a lawyer to advise you without having that person actually negotiate for you.
ACCEPTANCE: Many contracts specify that payment or other publisher commitments only come into effect “on acceptance.” You may wish to try to get the publisher to commit to some ground rules for determining what makes a Work acceptable or not, either in the contract itself or in an addendum. Even if the grounds for acceptance are entirely up to the publisher, you should agree on some kind of benchmark or deadline for the publisher to decide, so you know if your work has been accepted or rejected. A writer shouldn’t be left in limbo. If the Work has been rejected, you may want to invoke a kill fee or at least take the Work elsewhere. It’s difficult to do that if the publisher doesn’t say whether or not it’s been accepted.
ALL RIGHTS VERSUS WORK MADE FOR HIRE (WMFH OR WFH): Usually when you write something, you own copyright until you transfer it to someone else. An all-rights contract presupposes that you own what you write. Many all-rights contracts transfer rights from you to the client for specific period of time such as three months or two years. Even an all-rights contract that transfers all rights to your client “in perpetuity” may only transfer it for 35 years, after which copyright may revert and you become the owner again. In contrast, when you write under a Work Made for Hire contract, you never owned copyright. Everything you write under the contract belongs to the client for as long as copyright legally lasts. See “WORK MADE FOR HIRE.”
COLLABORATION AGREEMENT: When two or more people work on a writing project, a collaboration agreement can specify who does what and how they are compensated. Who will be first author? Will one person be a ghostwriter? Some collaborations go smoothly; others are disastrous. Creating a collaboration agreement can minimize conflict.
CONTRACTOR VERSUS EMPLOYEE: The IRS comes down hard on employers who try to pretend employees are independent contractors in order to avoid paying employment taxes. If you are a freelance writer and your client cannot tell you where you can work or what hours you can work, you would normally be considered an independent contractor, like a doctor, plumber, or accountant, and you should expect to pay a self-employment tax yourself. However, if your client requires you to come into the office and work certain hours, you are probably an employee, and your client will be withholding income and social security taxes. Many contracts specify one or the other. But check the rules at the IRS website to decide if you are what the contract says you are.
COPYRIGHT: Who owns your work? When you first write something you normally own copyright. It is not necessary to claim copyright in any formal way, it’s automatically yours UNLESS you agreed to give copyright to someone else before you even started to write. For example, if you work for an organization that explicitly claims ownership of anything you write while on the job, your work belongs to your company, not you. If you are a freelance writer and contract to write something as Work Made for Hire, it belongs to whomever you contracted with. See WORK MADE FOR HIRE for further discussion.
Other than that, if you are a freelance writer, you own your own work until you sell it, license it, or give it away in writing. You do not have to file anything with the copyright office to own your own work. However, if there is a lawsuit, you must be able to establish ownership. Filing with the copyright office is good evidence of your claim of ownership.
If you transfer copyright to someone else — whether by giving it to them or selling it — you no longer own the work. (Merely sending an article does not transfer copyright. You must explicitly transfer copyright ownership in a written statement.) If you license the work, you still own copyright, but the publisher has the right to use the work in whatever way the contract specifies. Licensing may also limit your rights.
DELIVERABLES: Any materials you contract to provide to your client are “deliverables.” This may be an article and a specified number of revisions; captions for photos; art or other graphics; different versions of the same article, with specific deadlines; and so on. Make sure you and the client agree on what you will be doing before you commit to a contract, deadline, and rate of pay.
ENTIRE AGREEMENT: Many contracts specify that a contract supersedes previous agreements or that it is the whole and entire agreement. If your client previously sent an email offering you $50,000 to write a 10,000-word report but the contract now says you will get $30,000, until you accept their offer, it doesn’t matter if you have the email agreement in writing and 10 people saw it. If the new one says it constitutes the entire agreement and you sign it, you are agreeing to $30,000. If you have side agreements that are not specified in the contract, you should ask for a written addendum.
INDEMNIFICATION: Indemnity clauses typically protect the client from the legal costs of lawsuits filed in response to something you wrote. For example, if medical advice you gave in an article harmed a reader, she or he might sue the publication. If you have indemnified the publication, you’d be responsible for expenses resulting from the lawsuit. Some forms of indemnification are reasonable protections for the publisher and others far exceed what’s reasonable for a freelance writer to promise.
Here’s an example of a draconian indemnity clause:
Author hereby agrees to indemnify, defend and hold harmless Publisher, its respective, directors, members, managers, employees, agents and subcontractors (each, an “Indemnified Party”) against any breach or alleged breach of the warranties in Section 10.0. Author will pay any and all costs, damages and expenses including, but not limited to, all attorney’s fees and costs awarded against or otherwise incurred by the Indemnified Party in connection with or arising from any such claim, action or proceeding. The parties shall provide each other with prompt written notice of any claim, action or proceeding concerning the Work of which they become aware. Author agrees that Publisher shall have the right to assume and control the defense and settlement of any claim made specifically against Publisher. Publisher agrees that Author shall have the right to assume and control the defense and settlement of any claim made specifically against him. The parties agree to cooperate with and assist one another and their respective insurers and attorneys in the defense of any claims under this Section.
This indemnity clause requires the writer to pay legal fees for the publisher that result from any legal action that is associated with the work — even an alleged breach of the warranties. So if you wrote, for example, that chiropractic adjustments do not prevent heart attacks and a chiropractor sued your publisher — claiming that your article was damaging his business — you would be required to pay all legal costs for the publisher, even if you could show that it is true that chiropractic adjustments don’t prevent heart attacks. If you are responsible for a publisher’s costs, in principle, they may have less motivation to fight the claim and could be more likely to settle and hand you the settlement cost.
This is not an agreement you should normally sign. Publishers carry liability insurance against this sort of lawsuit. A publisher convincing writers to sign indemnifications transfers risk to them and lowers the publisher’s insurance premium. As a general rule, you should not insure publishers; you are in the writing business, not the insurance business.
If you cannot persuade a publisher to remove an indemnity clause altogether, at least insist on being responsible only for actually (not allegedly) violating the warranties you agreed to and for breaches of the warranties that are sustained in a court judgment — “finally sustained.”
If you indemnify a publisher, you are liable for their legal expenses even if you are paid nothing, as is the case for some blogging contracts.
See WARRANTIES for further discussion of indemnification.
LICENSING AGREEMENT: A license transfers a subset of the rights of the copyright owner. A license can be as narrow as allowing someone to print an article one time in the United States, or it could be as broad as transferring exclusive digital rights around the world.
NON-COMPETE: Many contracts specify that the writer may not write for a competing publication, may not publish anywhere on a similar topic or for a similar market. Non-compete clauses can be draconian. Some states will not enforce them, however. For example, California law makes non-compete clauses difficult to enforce. However, it could be expensive and time consuming to defend against an aggressive publisher, even if the non-compete provision is not enforceable.
Non-compete clauses are also open to interpretation, especially in this age of paperless publication. The “similar market” is generally more important to the publisher than the “similar topic.” An author specializing in a particular area — human genetics, for example — would often write on the same topic. The trick is to address different markets (a textbook versus a narrative nonfiction book, for example), or to write sufficiently distinct articles (using different sources, examples, and quotes, for example).
NON-DISCLOSURE AGREEMENT: A non-disclosure agreement (or NDA) forbids you from communicating to a third party information you acquired from your client in the course of doing work for them. Non-disclosure usually does not cover common knowledge or information you already knew, but it can cover anything else a client shared with you in conversation or in documents.
CHOICE OF LAWS/CHOICE OF FORUM: A contract’s choice of law provision specifies the set of laws that will apply in interpreting the contract. A choice of forum provision specifies which court will resolve a conflict. (Many contracts use the phrase "place of execution.") Often, the choice of law specifies New York State laws, even if the writer lives and works elsewhere and the publisher is in some other state. In the event of a lawsuit, you may have to hire a lawyer who practices in whatever state is specified and travel there to appear in court. In some cases, you might be able to challenge such a clause even if you signed the contract. For example, if both the writer and the publisher work in California, you might be able to challenge a clause specifying New York as the place of execution.
PUBLISHER’S OBLIGATIONS: Many publishing contracts don’t contain many obligations for the publisher. According to Kirsch’s Handbook of Publishing Law, however, publishers have an implied good faith obligation to help you make your manuscript acceptable before rejecting it.
Still it’s a good idea to be clear about what you can expect from your publisher and ask if they can commit to that in the contract. For example, whatever you are writing, you would normally assume that your publisher will publish it at some point. But the publisher may have reasons (good or bad) for not wanting to publish something, even if you have revised it several times for them. If you are being paid on publication and they choose not to publish your article, you could end up with a kill fee or no payment at all. If you write a book, you may want to try to require your publisher to publish your book within a certain time frame. If you are being paid on acceptance, consider specifying what it takes for them to accept the manuscript (a certain number of words, good reviews from external reviewers, etc.) and how you’ll know when and whether it’s been accepted. See ACCEPTANCE above.
RENEGOTIATION: For books that go through multiple editions, it’s wise to retain the right to negotiate new terms for subsequent editions. In textbooks, for example, coauthors come and go, and the burden of work on different coauthors changes from edition to edition. If a textbook becomes successful, for example, authors may want to ask for a larger royalty.
It might be helpful to set conditions for renegotiation of royalty splits as the publication changes. In some situations one author in a multi-author project may be asked to accept lower royalties because that person’s role has diminished over time, or he or she has left the project. In the opposite situation, an author team may need to enlarge to keep the product competitive. For example, a three-author team for a human anatomy and physiology textbook had to decide what percentage of royalty to share when two digital coauthors were brought on board. The new coauthors were vital to keeping pace with the changing technology necessary to maintain market share.
Don’t assume the total author royalty has to be static. The publisher of a successful book may be persuaded to share a larger fraction to bring in more coauthors.
TERMS OF PAYMENT: Depending on the work, you may be paid part of a fee before you start and part when you submit a first or final draft. You may be paid on acceptance or paid on publication. If the project is large, you may reasonably demand to be paid in installments. Think about what’s fair to you and fair to the publisher. Don’t assume the project will go to completion, but consider what payment would be fair in case it does not.
TERMINATION: A contract should say under what circumstances the agreement ends. For example, if an author fails to deliver an acceptable manuscript by a certain date, the publisher may have the right to end the contract. In that event, the author may or may not be required to return the advance. If the author unilaterally decides not to write a book, can the author end the contract and be free of all obligation? Or does the contract remain in force, preventing the author from writing the book for another publisher?
THE WORK: The Work is the document(s) you write for the client or publisher. Whether it’s a book, a magazine article, or a collection of photographs, the Work is whatever tangible thing you promised to provide.
WORK MADE FOR HIRE: If you contract to write for a client under a Work Made for Hire (WMFH), or Work for Hire contract, your client owns the work as soon as you write it. That is, copyright in the Work belongs to the client, not to you. You can’t resell the work or use post it on your website unless the client gives you permission or formally licenses the Work back to you.
If you are an employee of the publisher, your assignments will most likely be owned by the publisher and are work made for hire. As a freelance, there are some limits to what can be Work Made for Hire. A work can only be WMFH if it falls into one of a long list of categories, including but not limited to a contribution to a collective work, part of a motion picture or audiovisual work, a translation, compilation, supplement, instructional text, test bank, or atlas, and even then only if both parties expressly agree the Work is WMFH. See ALL RIGHTS and COPYRIGHT for further discussion.
WARRANTIES AND COVENANTS: A warranty is what each party promises is a true statement. A covenant is a promise to do a particular thing. In a typical contract, the warranties are mostly the writer’s. For example, a writer usually warrants that the work submitted is original, the writer owns the work, the work does not infringe on another’s copyright, is not libelous, and so on. Frequently, however, the warranty clause also includes an indemnification.
Here are two sample warranty provisions, one from a magazine contract and one from a textbook contract:
Magazine:
“You represent and warrant that you are the sole owner and author of each Article and that it is original to you; that the Article has not been previously published; that you will take all reasonable care to ensure that the Article is not libelous and does not violate the privacy or publicity of any individual; and the Article will not infringe any copyright, trademark, service mark or trade secret rights. You agree to cooperate fully in the defense of any legal action that might arise from creation or publication of the Article.”
This last sentence (highlighted) may look like an indemnification, but it is not. The agreement does not require the writer to pay for legal expenses, but only to cooperate if there is a problem. If the lawyers want to interview you or see your notes, you cooperate.
Work Made for Hire book:
Writer's Warranties. The Writer warrants that she is the original creator of the Work and of all rights therein, and has full power to make this Agreement, that the Work is original with her except for such excerpts from copyrighted works as may be included therein with the permission of the copyright owners, that the Work is unencumbered, and neither libelous nor obscene, and does not infringe any copyright or violate any statutory or proprietary right of common law, and that she will indemnify the Publisher against all costs, expenses, and damages arising from any breach of this warranty finally sustained.
This last clause (highlighted) is an indemnification, slipped into the end of a paragraph on warranties.
The National Association of Science Writers, Inc. (“NASW”) supports practical measures meant to help freelancers build and sustain a thriving business, from compensation surveys that offer a historical look at the field to tip sheets on matters like how to approach contract negotiation. In offering these educational resources to support our members, and in all our activities, NASW is committed to compliance with all applicable antitrust laws. NASW members are reminded that they must exercise their independent business judgment in pricing their services or products, dealing with their customers and suppliers, and choosing the markets in which they will compete. Federal laws stipulate that members may NOT agree with other NASW members or writers on prices or terms or on any other matter which is inconsistent with exercising their independent business judgment in pricing their services or products, dealing with their customers and suppliers, and choosing the markets in which they will compete. NASW members are always free to accept any assignment at any rate they choose. For further information, please see our Antitrust Policy, available here.
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