Freelancers should push back on unfair contracts

binding-contract-948442_1920Fellow freelancers, have you noticed how restrictive and unfair contracts can be? No? Then you have not been reading your contracts. Go back. Read the last three contracts you signed. Now. I’ll wait. . . .

Done? Now that you know what the contract holds you legally responsible for, you may need a stiff drink. Go ahead. I’ll wait . . . .

Feel better? I assure you that’s only temporary. It’s nothing new that most of today’s contracts give all rights, in all media, in perpetuity to the publisher. It’s been that way ever since words and pictures were turned into ones and zeros. But in the last five years, publishers have been slipping in indemnification clauses and other provisions that are even more unreasonable and unfair. In return for work that may amount to only a few hundred dollars, the writer is held responsible for any and all mistakes, inaccuracies, copyright violations, libel and all other bad things. These contracts absolve the publisher (usually a for-profit company with multi-million-dollar revenues, a staff of editors and an entire legal department) from all such responsibility. They often stipulate that the writer (who probably has no lawyer) bears the costs of any legal defense.

Unsure of myself and worried I wouldn’t get enough work, I signed contracts with barely a glance for the first couple of years of my freelance career. Once I started reading them, I had to decide whether to sign them. Did the worth of the gig justify the amount of risk I was taking? How could I diplomatically suggest changes in the contract? Was I prepared to walk away?

Here’s a typical indemnity clause:

Contractor represents and warrants to publisher that the work performed hereunder shall be the original and unpublished work of Contractor, will contain no defamatory or unlawful matter and will in no way infringe upon the copyright or violate the proprietary rights of any person. The Contractor agrees to indemnify and hold publisher harmless from any suit, demand, or claim against the publisher by reason of any breach of this section, and the Contractor further agrees to pay any judgment or reasonable settlement offer resulting from any suit, demand, or claim, and to pay any reasonable attorney’s fees incurred by publisher in defending against such suit, demand or claim.

As a professional journalist I of course am willing to promise that the article will be original and unpublished and that I will not knowingly violate any copyrights. However, how can I know all laws around the world and promise that it will contain no unlawful material or violate proprietary rights of any person? The publisher would own all rights to my work in all media (including media of the future) and throughout the universe, and yet it would hold me liable for any violations of copyright or laws anywhere. Along with the purchase of those rights comes responsibility. It is the publisher, after all, who will derive ongoing revenue from publishing the article, whether it be money from advertising, subscriptions or some other form. The publisher employs editors and other professionals who revise, rewrite, proofread and publish the work. What if they introduce an error? What if some nut job decides to bring a nuisance lawsuit? Such clauses put the writer on the hook for all of that.

I usually ask the publisher to drop the provision or I suggest a rewrite that limits my liability. Sometimes, the publisher agrees. Sometimes, the legal department refuses to make any changes. But usually, it’s somewhere in between. Then I’m back to my risk/reward equation.

The problems go beyond the unreasonable indemnity clause. Some custom publishers try to include broad non-compete clauses, which unfairly restrict my right to do business. I’ve seen this in several contracts:

During the term of this agreement and for one year

[or two years or sometimes longer] after its termination, Contractor agrees not to work for any client of the publisher.

I would never steal a client from a custom publisher. Besides being unethical, it would sully my reputation and guarantee that I’d never get work from that publisher or its editors again. I understand the publisher’s need to include something like this in a contract, but it’s unrealistic and unfair to make it so broad. I’m usually only working on one project for one of the publisher’s clients. I don’t know its other clients are. For all I know, I may already be doing work for some of them. I usually propose replacing “any client” with either a specific client name or a list of all the publisher’s clients. They usually go with the first option.

And just when I thought I’d learned to navigate the most treacherous waters of freelance contracts, I was asked to sign an agreement so onerous that I had to read it three times to believe it. In addition to indemnity and non-complete clauses, the contract provided that I:

• Disclose any financial interests I or any family member had in any company discussed in the content and any financial interest in any company that competes in the same industry as any company discussed in the content.

• Disclose any membership or affiliation I had in any civic or professional organizations engaged in activities relevant to the content’s subject.

• Disclose and continue to update to the publisher regarding other publications that have published any content I wrote and any commercial transactions related to the content I wrote for this project.

• Agree that I would not pay or transfer anything of value to any government official, political party or any agents of family members of a government official or political party member.

• Agree to notify the publisher if I or any member of my family became a government official.

• Agree to ensure that any computer or telecommunications equipment I used to write the content was running up-to-date anti-virus software and protected by an adequate password or other means of authentication.

• Represent and warrant that I would not transmit any viruses, worms, time bombs, Trojan horses, or other harmful or malicious code, files, scripts, agents or other programs.

I might agree to some of these provisions if the gig involved an investigative story for a major national newspaper or magazine. Then, it makes sense to ensure there is no conflict of interest AND I would be getting a byline in a prestigious publication. But this was a custom publishing contract. The per-word rate was high, but there was no prestige or byline, and no way to know whether I’d make $50, $500 or $5,000. The lawyers even had the gall to include a provision that “nothing in this agreement will be construed as establishing an employment contract.” Of course they had to include that. If it was an employment contract, they would have to guarantee me a salary and benefits in return for all the rights I was giving up.

The lawyers wouldn’t change a word. Apparently, they find plenty of freelance writers who agree to these provisions. That scares the hell out of me. If you’re one of them, please stop. Read your contracts. Reject unjust provisions. Remember we are freelancers, with the emphasis on “free” to walk away. Give up a sale, rather than sell out your profession. In the long run, it just might make a difference.

2016-12-17T02:03:26+00:00 Legal, The business of freelancing|

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