Three clauses freelancers should know (and negotiate), according to lawyers

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The life of a freelance journalist is only getting grimmer. The money’s worse, publishers demand more rights, and the labor pool expands by the day. All of this can make it tempting to focus on finding paying work wherever we can and letting the details slide.

“Lawyers have a saying: You name the price, I’ll name the terms,” says David Lizerbram, an intellectual property attorney in San Diego. “For those of us who deal with the nitty gritty, contract terms are really where the action is. All these things really do matter.”  

Here are a few guidelines to keep in mind when deciding whether to sign on the dotted line.

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1) Copyright: licensing agreements or work-for-hire?

Typically, publishers either offer a work-for-hire contract or request to license a writer’s work exclusively for a set period of time. If it’s the former, the publisher owns the work and can do with it whatever it wants, including perhaps reselling it to third parties or adapting it for a 23rd-century intergalactic spacecast using technology that hasn’t even been invented yet, all without paying the writer another dime. In extreme cases, such contracts might even bar a writer from posting her story to her own website without written permission from the publisher, though it’s unlikely anyone would go to court over such a minor breach.

“A lot of independent journalists used to string for many markets, in different languages, on multiple platforms,” recalls Anna Day, co-founder of the Frontline Freelance Register, an organization run by and for freelance journalists working in conflict zones. “In the last few years, we’ve seen a huge expansion on licensing materials, people asking for global rights on all platforms, and at rates that are not professional rates.”

Related: Vice shows how not to treat freelancers

Day’s group has been fighting back against what she considers “unethical and unfair” contributor agreements by developing its own sample contract that it hopes its media partners will adopt. Fairer copyright terms are among the top priorities.

“Ultimately, this question relates to what you may later be able to do with your own work,” says Jeff Hermes, ‎deputy director of the Media Law Resource Center. If you prefer to retain ownership, try to negotiate a licensing agreement instead, or talk with your editor about writing specific exceptions into the contract.

When to Cave: “It depends on whether you think there’s a realistic chance of this work having a life in another medium,” Lizerbram says. “If you really think this story could become a movie or a Netflix series, then you want to be really careful.” If it’s a burner blog post you’ll never think about again and you need the cash, cave.

When to Walk: When the money is bad; when you want the freedom to reuse the materials later (say, in an essay collection).

 

2) Payment structure

Beyond negotiating your rate, pay attention to when the outlet plans to cut the check: on acceptance, or on publication. The New York Times, for example, is as notorious for its payment-upon-publication policy as it is for its backlog, meaning completed stories can sit on the shelf for months and writers have no choice but to wait.

Try to negotiate for payment on acceptance instead, and you may have some leverage depending on what’s in the rest of the contract. “If they’re buying the work outright or you’re granting them an exclusive license, then it’s more reasonable to expect payment on receipt, because you’ve given them what they asked for,” Hermes says. If the contract doesn’t specify a kill fee—partial payment for a completed story that the publisher opts not to run—ask to write one in.

If reporting your story safely requires hefty expenses, ask for those funds up front. This is especially important for freelancers working in conflict zones, says Day. “Expenses can be thousands of dollars. If you don’t have that, you can’t make the best decisions for your and your team’s safety.”

When to Cave: When cash flow isn’t an issue, and you really want that Times byline.

When to Walk: When your safety could be at risk; when you suspect you could get better terms elsewhere.

 

3) Liability waivers and indemnity

Jonathan Peters, a media lawyer and journalism professor at the University of Georgia who’s freelanced for 15 years (including for CJR), says he began to notice indemnity clauses and liability waivers creeping into his contracts within the past six or seven years.

“The waiver clause says that if you produce content that I publish, and that content creates liability—defamation, invasion of privacy, copyright, who knows—you will hold me [the publisher] harmless,” he says. Combine that with an indemnity clause, which puts the freelancer on the hook for the company’s defense in a lawsuit, and you’re left extremely vulnerable.

Peters and Hermes are split on the likelihood of getting an indemnity clause struck from a contract. “In my experience, if you press an editor hard enough, they remove them,” says Peters. Hermes maintains, “There probably is no way around those indemnities,” but adds that “no media organization really expects that a freelancer earning thirty-thousand dollars a year is going to be able to meaningfully offset a seven-figure libel judgement, plus attorney’s fees.” That’s why it carries insurance—and you should ask if the outlet’s policy covers freelancers as well as staffers.

Related: I am a freelance journalist. Do I need to buy liability insurance?

Lizerbram echoes this. “Take indemnification clauses seriously, but understand that most of the time it may not be cost-effective for the company to even try to enforce them,” he says. If a publisher refuses to strike it from the contract, Lizerbram suggests asking to write in a cap on liability that’s proportional to what you’re getting paid. “If you’re getting $1,000 for the story, you shouldn’t have $1 million of liability,” he says.  

When to Cave: “If I’m producing ‘refrigerator journalism’—happy stories that end up on a refrigerator somewhere—I’m not going to worry much about an indemnity clause or a liability waiver,” Peters says. At the same time, Hermes cautions, “It’s dangerous to think that because you’re writing what you think is a puff piece, there’s no potential risk. Some of the toughest cases we’ve had came out of publications that look like light or fluffy pieces, because the writer wasn’t thinking about secondary characters who might be upset about the reporting.”

When to Walk: “Think about the credibility of the organization and its reputation for sticking up for its own,” Peters advises. “Is it known for leaving people high and dry?” If it is, and your story might anger someone rich and powerful, considering looking for another publisher.

 

Things to keep in mind

The laws of supply and demand are real, and tipped in favor of the publisher. “Unless you’re Michael Lewis, the bigger the publication, the harder it is (to negotiate), and more likely it is they’ll just tell you no and go to the person standing behind you,” Peters says.

To get contract terms changed, being too aggressive will get you nowhere. Be prepared to make your case. Understand the leverage you have and use it.

“What are you bringing to the story that some other writer could not?” Peters says. “Why do you want this clause struck, and what’s your reasoning for it?”

When all else fails, appeal to your editor’s journalistic ideals.

“I argue that these [liability and indemnity] clauses are bad for journalism,” Peters says. “If I’m a freelancer and I know that I can be left out twisting in the wind, that might make me a little gun-shy, maybe I’m going to pull some punches to mitigate potential liability. The net effect on journalism as a public service can’t be good.”

 

For more information

The Freelancers Union’s Contract Creator helps freelancers draft sample contracts that are compliant with New York City’s Freelance Isn’t Free Act, and the American Society of Journalists and Authors (ASJA) has a detailed Guide to Common Contract Questions available to its members. Frontline Freelance Register and ACOS Alliance are creating sample contracts that better protect freelancers while educating editors about best practices for working with freelancers in conflict zones.

 

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Maya Kroth is a writer based in Atlanta and Mexico City.