The WMF Archives: A Crash Course in Writers' Contracts

Thursday, May 13, 2010

A Crash Course in Writers' Contracts

6:00 AM

At the request of several of my WM colleagues, today I'm going to take you on a quick tour of the basic points you will usually find covered in a writer's contract. I have signed many of these over my career and was a legal secretary in a galaxy far away from here, so I've always felt comfortable reading and negotiating my own contracts.

But if you're new to contracts, they can seem intimidating and even boggling. I recently negotiated one that was more than 10 pages long!

Which brings us to point one about writers' contracts: They're negotiable. Every point in them. Beyond that, here are some of the basic areas you may see covered in a contract. Some you'll want to make sure are in there, while others you may want to try and get removed:

1. Definition of the work. The contract should state how much work you're supposed to do and when it's due.

2. Payment terms. I've learned to define these sharply. The contract may say simply that payment will be $X. You want it to say something more like "payment will be $X and due in net 30 days. A 3% monthly late charge will apply to overdue bills." If there are any possible bonuses you can earn from traffic, retweets or anything else, they should also be defined in the contract. If it's a new corporate client, you should be looking for 25%-50% of the contract as an up-front payment due before you start, with those terms in writing in your contract.

3. Ownership. The contract should clearly state who will own the work. This could be straightforward -- it's work-for-hire and the client owns all rights. Or it could be more complicated -- the publication or client owns the work for 90 days and then you can resell it, for instance. Or they only own it for online and you could resell it to a print publication.

4. Credit. The contract should define if you get a byline -- and in this Internet age, I'm asking for my byline to be a live link to my Web site. Free marketing you want to have, and many clients are happy to give it.

5. Exclusivity. You want it to say you are free to work for anyone else you choose, or for there to be no exclusivity clause. If they have competitors they don't want you writing for at the same time, they need to name them. Resist efforts to forbid you from writing for competitors after you're done writing for the client.

6. Warranties. The client will want you to warrant that you are not plagiarizing the material you give them, or making up lies. They assume you're smart enough to not write anything that could get them sued for libel or defamation of character. If you do, you will take the lawsuit hit, not them. This lovely clause is also known as indemnification.

7. Confidentiality. If the client is sharing company secrets with you as you prepare articles, they'll want you not to share that information with anyone.

8. Termination. If it's an ongoing contract, there should be a clause stating how notice is given and how much notice either side must give to end the contract. Thirty days seems pretty standard.

9. Limitation of liability. Translation: the client would like to limit how much you could sue them for if the relationship goes sour to the amount they have paid you. Resist if you can.

10. Kill fees. Many print publications still do pay kill fees if they decide not to use your article, of 20% or so. Hopefully you won't need it, but ask if they will offer it.

11. Likeness. These days, many markets you write for will want permission to use your headshot and bio on their site. And that's all good!

12. Right to reproduce. A good contract will specifically grant you the right to reprint the article in any media where you produce all the content, i.e. your own writer Web site. I've talked to too many writers who're worried about putting a clip on their site because they didn't make this point clear.

Did I leave anything out? If you have any questions about basic writers' contract clauses I may have overlooked, leave a comment and I'll try to answer them.

DISCLAIMER: I am not a lawyer and this post should not be construed as legal advice. Seek expert advice if you have a question about a contract.

Photo via Flickr user ol slambert

Labels: Carol Tice, contracts, negotiating

14 comments:

CynthiaK said...: A great post - so helpful! Thanks, Carol! You're such a fantastic resource.; May 13, 2010 6:27 AM
allena said...: Wow! Great. How about this- related to exclusivity-- some clients don't want you going directly to THEIR clients- competing for them. While that's fine for the course of your mutual work, after the work is over, you don't want to be stopped from perhaps approaching their clients in the future.; May 13, 2010 1:37 PM
Carol Tice said...: Hi Allena --

I have not been hit with that one myself...but in general I resist clauses that limit my ability to earn a living. Ultimately, if they really want to have that exclusivity, they should hire me as a full-timer, is my philosophy. THAT locks me down...otherwise I should generally be allowed to earn and get whatever clients I want.

I think you're probably talking about writing through an intermediary for an end client, and then they don't want to be cut out of the deal. I think that's pretty standard...but once you're done writing for them, you should be free to work directly with a client if the client wants to...like I said above, the warning about clauses that prevent you from writing for anyone in particular AFTER your term with them is over.

I don't think that's cool, to control who I write for after you're not paying me anymore!; May 13, 2010 5:39 PM
Bettina Bergh said...: Thank you for sharing this information,Carol! I am bookmarking this page in my Reference and Writing Files, for when I find a publisher for my book!; May 16, 2010 12:39 PM
Marisa said...: This topic is very timely for me. I was asked to sign a contract where the issue of liability was 100% in favor of the employer. In fact, it was so broad that if his company were sued for any reason, I would be liable for costs, regardless of the outcome, who was involved, or whose fault it was. When I asked for revisions to make it more fair to both sides, the response was "I've had lots of other writers sign this contract over the past 15 yrs, so I don't see why it's a problem." I suspect other writers may not have been aware of what the terms meant, or they were more willing to accept risk than I am. Thanks for helping educate us all about these issues.; May 17, 2010 10:20 AM
Carol Tice said...: Lots of folks don't read their contracts, Marisa. I'm not fazed by comments like that...just because 15 other people are idiots doesn't mean I have to be!

Bettina -- these points don't come from book contracts but from article contracts I've signed in recent years, just to clarify. You don't have to get to the book level to be presented with a lengthy contract -- one of the longest ones I've signed is for blogging.; May 17, 2010 3:08 PM
Lauren said...: Excellent information. Thank you.; May 21, 2010 1:25 PM
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