The Free Lance

by Tabitha M. Powledge

I’ve been at this freelance thing so long that I can remember when the most formal legal aspect of getting an assignment consisted of a letter (remember letters?) delivered by your regular postman. Your editor dropped you a note describing vaguely what you and he-nearly always a he-had talked about in his office or, at the slickest mags, a lovely bibulous lunch. It was little more than the epistolary equivalent of a handshake, and most of the time it worked fine.

And then law schools opened wide to the ambitious, and law school graduates needed something to do. So now no editor can commission a word without a contract. A frequently impenetrable, often disgraceful, always scary contract. A contract that can require you to fork over your copyright, your electronic rights, perhaps even your future rights in media yet to be invented on planets yet to be discovered. And here you are, a solitary scribbler who spends much of the day inside your own head and feels defenseless and dumb when faced with an indemnity clause. (For the uninitiated, the indemnity outrage obliges you to pay your publisher’s legal expenses if anybody threatens a lawsuit against something you’ve written-even a baseless nuisance suit with no real chance of succeeding.)

What can you do?

Stop being ignorant. Stop being naive. Stop being a fraidy-cat.

That’s the advice from “How to Deal: Negotiating a Better Contract,” an NASW Workshop session at the Seattle meeting on Feb. 12.

Ask for what you want

It’s not important for writers all to demand the same things, according to panelist Erik Sherman, a writer who chairs the contracts committee of the American Society of Journalists & Authors (ASJA). Freelance writing is a business, and what you need for your business is different from what I need for mine. But it is important for writers to stand up to publishers and not be afraid to bring up the issues they care about. Be polite, but ask for what you want. “It never seems to have done me harm to negotiate,” he said. Keep in mind that there are reasons publications want to do business with you, Sherman counseled. You have more power than you may think.

Attorney Kraig Baker, the other panelist, who is a partner at Davis Wright Tremaine LLP, noted the difference between demanding and negotiating. You may not get everything you ask for, but those on the other side of the table are expecting you to ask for something. Figure out what your priorities are. For example, is it more important to you to control your work or to be paid more money for it? Try to distinguish real risks from ephemeral ones. Most important: go into contract negotiations with a firm idea of what you’re asking for.

These days there is a small trend to publishing contracts written in a lingo that often resembles plain English. But there are still plenty of contracts around that are long and full of puzzling and seemingly irrelevant language. Sherman agreed that contracts, especially for new publications, are often an afterthought. If a contract appears to have seeped in from a different industry, that’s probably because it has, according to Baker, who noted that the contract you’re handed could be a seven-page document that began as a software agreement.

Sherman pointed out that sometimes you may be expecting a fight over your requests, but there isn’t one. On the other hand, if a publisher gets into a snit because you asked for changes, just walk away. It’s not personal, it’s business.

First serial rights and serial contracts

You’ve got the assignment, but they hand you a contract saying that your product will be a work-made-for-hire. If you sign a WMFH contract, your client will not only own the rights to what you write, but, legally speaking, becomes the author. For some projects-annual reports, for example-WMFH contracts may make sense, but not usually for bylined articles.

In that case, the first thing to do, Sherman advised, is say, “I’d like to see your First Serial Rights contract, please.” Big companies especially have different versions of contracts, and sometimes all you have to do is ask. Or you can ask for that First Serial Rights contract up front and get it out of the way early in the discussion.

As long as you don’t sign it away, what you’ve written belongs to you. Sometimes the contract never gets mentioned. If the client forgets to send you a contract, should you forget about it too? I confess I’ve done that with clients that I know from experience have onerous contracts but are trustworthy about cutting decent-sized checks. Working without a contract is not totally nuts, Baker conceded. But keep in mind that there may be risks you are not foreclosing. He pointed out that, without the protection of a contract, you could find yourself giving away rights with some throwaway line in an e-mail.

Is your editor an ally?

Don’t count on it when it’s contract time, although you may luck out. Baker noted that an editor often will be sensitive to a writer’s concerns in a way that the business department will not be. Many editors are writers-or ex-writers. They can become advocates for you with the legal department, he said.

But Carol Ezzell Webb, formerly an editor at Scientific American and now a contributing editor there and a freelance, cautioned from the audience not to assume your editor is going to be able to negotiate with you. At some publications, any contract changes get bounced to the editor in chief, which can sour the relationship. Her advice: Ask for more money up front and give up your electronic rights in exchange. Additional money can be easier for an editor to arrange than contract changes.

However, Sherman pointed out, you can often ask your editor what changes are allowed. But sometimes editors don’t know what contracts are available or what’s a permissible change. Keep your contract information current by networking with other writers and his own ASJA committee, he said.

Secondary rights are not secondary

Moderator Kathryn Brown, a freelance and contributing correspondent at Science, wanted to know whether there is money to be made from secondary rights, such as re-use of your articles on Web sites or in databases. The money may not be huge, Baker responded, but that doesn’t mean a writer should leave those rights on the table.

Sherman noted that an amount of money that’s small to a publisher can be significant to a writer. Try to make sure that the rights to your material revert to you after they run it, and that you will share in their revenue if they sell reprint rights elsewhere, he said.

The bottom lines

I’ll leave the last words to Sherman, who emphasized two points several times.

First, the best defense against bad deals is to walk away.

Second, freelancing is a business, and you should be realistic about that. “If someone offers four or five dollars a word and wants all rights, I’d do it,” he said. “This is business, not moral philosophy.”

Help is on the way

This useful workshop was organized by Kathryn Brown, who chairs NASW’s freelance committee and also arranged for the workshop to be recorded and transcribed. By the time you read this, the transcript of the contracts workshop session, containing lots more advice than I could cover here, should be posted in the members-only section of the freelance pages on the NASW Web site www.nasw.org/mem-maint/freelance/.

ASJA’s invaluable Contracts Watch newsletter is free to all at www.asja.org/cw/cw.php. Sign up there and get it delivered to your mailbox.

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Tabitha Powledge can be reached at tam@nasw.org.