The hottest topic of conversation for freelancers is definitely money. But freelance contracts come in a close second. That’s why we like to offer a regular refresher on the subject.
Publishers have been adding some distinctly freelancer-unfriendly clauses to their contracts over the past few years. And with well-paid freelance writing work getting harder and harder to come by, freelancers are more likely to sign contracts that aren’t in their best interests. The results can be devastating.
We checked in with agent Derek Finkle of the Canadian Writers Group recently to find out what he’s been seeing in freelance contracts and to ask for some advice on negotiating better contract terms.
The Copyright Act automatically assigns copyright to the creator of a work, but publishers have started adding clauses to their freelance contracts over the past few years that require freelancers to relinquish their copyright.
Loss of copyright can mean loss of income for freelancers. Especially when contracts claim copyright not only of the published story, but of underlying research materials and raw interview tape as well. If you give that up, you lose your ability to re-sell your work or even more than one story that’s based on the same research material.
And loss of copyright has implications besides loss of income – it can also affect your reputation. Canadian parenting writer Ann Douglas wrote a post for Story Board in 2013 about a clause in her contract with the Toronto Star that allowed them to sub-license her column to third party publishing partners.
Derek Finkle was involved in that dispute as Douglas’s agent. He explained why Douglas needed control over who would be publishing her work.
“She can’t be affiliated with certain brands and certain products and then still be viewed as an independent expert voice. She didn’t want to be tainted by commercial attachments,” he said.
The Star refused to change the contract clause and Douglas stopped writing for the newspaper as a result.
Contracts that ask freelancers to waive their moral rights can also have an impact on a freelancer’s reputation. Moral rights are your rights to the integrity of the work you submit, and also your right to be credited for your work.
As Derek Finkle said in this Story Board post in 2013, clauses that ask freelancers to waive their moral rights give publishers the right to “essentially mutilate your work” in ways that you might not agree with.
The publisher can then either take your name off of it or leave your name on it.
As Finkle said in that post, “I don’t know, really, which is worse.”
When it comes to libel clauses in contracts, there’s even more at risk than income and reputation.
Finkle said that around 2009 publishers such as Rogers and TC Media added clauses to their contracts that indemnified the publishers from libel lawsuits, placing full responsibility for libel on the shoulders of freelancers.
“In the early days when we were fighting against this stuff I think we raised a lot of awareness about it and some of them did change,” he said.
Finkle said that some publishers, such as Rogers, agreed to add the word “knowingly” to libel clauses. Freelancers, in other words, were asked to warrant that they would not “knowingly” commit libel. Finkle says this distinction is important because most journalists have no legal training.
Although advocacy led to changes in the libel clauses of many publishers’ contracts, those changes don’t always stick.
“When I saw a more recent Rogers contract I noticed that the word ‘knowingly’ had been removed,” he said.
Although publishers are ultimately responsible for what they publish, an indemnification clause allows the publication to potentially sue a freelancer to recoup damages that resulting from a libel suit. Finkle said he doesn’t understand why any freelancer would take such a risk.
“I don’t understand the bargain where the publication puts all of the onus on you when they’re the ones who perhaps employ the fact checker, or research department, or a lawyer on retainer to vet the piece,” he said.
Finkle said freelancers should request, at the very least, the addition of the word “knowingly” to any clause that asks them to warrant that they will not commit libel.
“I think a lot of freelancers, especially when they start out are kind of scared to have that conversation, and they shouldn’t be. Ask the editor: ‘would you put your house at risk — where your child sleeps — over this story? Because that’s what you’re asking me to do,’” he said.
These days, Finkle has a new concern: kill fees. This stems from a dispute between Toronto writer Alex Gillis and the Walrus magazine that unfolded last fall.
Although copyright law does not protect ideas, Finkle said it’s unethical for publishers to take freelancers’ story pitches and assign them to in-house writers – particularly if the same sources and significant chunks of the freelancer’s research are used.
Finkle calls this “idea appropriation” and says it’s “a form of plagiarism.”
He said that good kill fee clauses address this issue. Many contracts lacks kill fee clauses altogether. Some contracts contain kill fee clauses that allow publishers to kill a story for any reason while only paying 50% of the agreed-upon fee. Finkle said this does not protect freelance writers from idea appropriation.
“If you’re going to kill it at a late stage for reasons beyond the writer’s control, if they can’t prove that somehow the writer didn’t deliver on whatever you said they were going to deliver on, or if you’ve got a logjam and you can’t get it in there, you can’t give them 50%,” said Finkle.
“You’ve got to give them the whole thing.”
Questions? CMG Freelance can help
When you’re offered a contract by a publisher, you should consider it an opening offer. Remember that it’s reasonable to ask publishers to strike out or change unacceptable contract clauses. After all, your income, your assets and your professional reputation are at stake.
Do you have questions about a freelance contract? Membership in CMG Freelance gives you access to contract advice from staff representatives at the Canadian Media Guild.
You can find out more about the cost and benefits of membership right here.