Over the years, I’ve noticed that contracts I have been asked to sign have gotten longer and more complex. I have often been asked to take on all the legal responsibility if someone should sue over an article.
And most contracts now demand that the article is a work for hire, which means if I were lucky enough to have an agent approach me about writing a book or a script or hosting a podcast based on the story, I would be out of luck; the publication would own all future rights. I have tried negotiating my way out of onerous contract clauses, but I haven’t always succeeded. In those cases, I hold my nose and sign, or I try to take the idea elsewhere.
All of this can be confusing, and that is why I hosted a webinar with attorney Charles Glasser in early October to discuss what steps freelancers can take to get the best possible contract and protect themselves from legal liability.
Glasser, a former journalist, spent 12 years as the global media counsel for Bloomberg News and is now a private legal consultant. He works with Freelance Investigative Reporters and Editors (FIRE) to produce advice for freelancers about negotiating legal terms in contracts.
I recommend watching the recorded webcast if you have questions about contracts you are being asked to sign. I thought it would be useful to summarize the key points that Glasser made in Q&A format, edited for length and clarity.
AHCJ’s Freelance Center also has a page with useful resources about contracts.
Should freelancers ever agree to write an article without a contract?
It depends on what you’re covering. It depends on the publication. If you are working with an organization with whom you’ve worked in the past and never had a problem, and — this is the key thing —the subject matter is really anodyne — then sure, go ahead.
If a freelancer sees a clause in a contract that says the freelancer will indemnify the publisher, what should the freelancer do?
Let me explain briefly what indemnity is. Let’s say Barbara is a publisher and I’m a reporter. And a story goes south for one reason or another. It might be incorrect or it might be accurate, but we are dealing with a very litigious subject. If I have a naked indemnity, that is if all the document says is I will indemnify Barbara for any legal costs and claims, that is toxic. Never ever agree to that. The only way you could possibly agree to that unless you’re insanely wealthy is if you have your independent [liability] insurance contract or policy.
Is there any indemnification language in a contract that would be acceptable?
Indemnity is okay if it is a mutual promise. We say to the publisher in our FIRE contract template that the reporter will indemnify you only on two conditions. One, an independent review shows that the reporter acted with actual malice and knew what they wrote was probably false. The second thing that we’re willing to say you should indemnify the publisher for is plagiarism.
If there’s a bad indemnification clause in the contract, should the freelancer cross it out and send it back to the editor?
Try and get the editor to make the change or at least have a conversation with the publisher or lawyer. If they hold firm and say, “Nope, this is just the way we do it,” then walk. If it’s a really good story, someone else will pick it up. I know it’s hard, but don’t sign.
Should freelancers try and specify in a contract that they indemnify the publisher for the submitted manuscript but not for any editorial changes that the freelancer did not approve?
That is very good. And if we can get that, we do. We [at FIRE] have the ability to reach out directly to the lawyer at Hearst or the lawyer at the New York Times or the lawyer at any one of a number of sizable publications. We try to advocate for the reporter.
Should every reporter have an individual liability insurance policy?
It is always better to have insurance, but it is hard to buy because it is expensive to buy on your own. Certain trade groups, and even certain guilds, have group policies and that, of course, lowers the cost.
We often see contracts that say this is a work for hire. What does that mean?
Work for hire means I am being contracted to write or produce this content, and the publisher owns it all. They are the copyright holder. So, they can take it, slice it, dice it, resell it, package it for a book, package it for serialization, make a movie out of it, pitch it to different TV producers, whatever they want. Now, there are circumstances where yes, it’s work for hire, but as part of the deal, a writer can be given a license to use the material. And that license can be royalty-free, or they could ask for a piece of the pie.
Can a freelancer try to insert a clause that the work reverts back to the freelancer’s ownership in say, a year from now?
Yes. What you have there is a promise of assignment.
Some contracts say the writer gets paid within 30 or 60 days, for example, and other contracts say the writer gets paid upon publication, which could be six months out. How do you get around that?
You put a limit that it must be published by a certain date. [You can also say,] “You have three days from receipt to tell me that this is or is not acceptable or forever hold your peace.” Three days go by, and they don’t tell you. Then if they don’t publish it by a certain date, they revert all rights to you, and you get a kill fee. That’s reasonable.
What if the published article is much longer than what is in the contract? How can the freelancer get more money?
There’s an overarching principle in contract law called material change. It like just like when you hire a kitchen contractor. You say oak shelves in the contract, but later you decide you don’t want oak, you want walnut and it turns out to be more expensive. Well, that’s a material change. So the best thing to do is have a clause in your contract that says you will be paid $1,500 For 1,800 words and substantial changes to this will be remunerated by common agreement. You don’t want to get into a big fight right now. And you’ll negotiate.