This series of posts by the Born Freelancer shares personal experiences and thoughts on issues relevant to freelancers. Have something to add to the conversation? We’d love to hear from you in the comments.

bornfreel2I think Sara Tatelman’s recent two-parter on liability and insurance for freelancers is a must-read. It is a topic of paramount importance for all freelancers despite the fact many of you might not think it relevant to your situation.

Believe me, it is. Or if it isn’t today, it will be tomorrow.

We live in an increasingly litigious world.

Publishers and producers who unfairly insist upon making freelancers the scapegoats in the event of legal action are taking the easy and cheap way out.

As freelancers, we must collectively act to curb such advances as have been made and push back to a more fair and just position in terms of limiting freelancers’ legal responsibilities.

Surely it is the job of a reputable, competent publisher or producer to accept comprehensive responsibility for everything that they publish or produce. It certainly used to be. It is their job to have fact checkers. It is their job to have lawyers. I know, I know. They say they can’t afford them any more. Well, I don’t buy it. And off-loading such responsibilities to those least capable of affording them (us) is downright insane. No, I take that back. That they should try it is merely amoral. That we should accept it is downright insane.

Every freelancer should strive to insure that their content is original, that any quotes are used with permission, and that their facts are accurate. It’s called being professional. But once our work has been accepted for publication/broadcast it is a part of a greater whole. Publishers/broadcasters demanding copyright (which should never be negotiated away without just cause and added remuneration) can and often do change it, recontextualize it, repurpose it and so on, usually without any further reference to its author.

It’s bad enough they expect us to accept liability when it clearly should be their sole responsibility.

But by acquiescing to their self-serving demands without a fight we’re letting them believe they are in the right to do so.

My story

I never thought about liability and insurance until I was involved in the development of an irreverent topical multi-media project. I began to get concerned when I heard glib comments like “Can’t wait to see their faces in court” (I am paraphrasing) referring to some of the public figures we would be “going after”. When I raised concerns about my personal liability I was told not to worry. I was not happy. As a freelancer I was not privy to decisions resulting in the final presentation of my work. What if it was twisted in some way I had not agreed to? What if my work was placed alongside something totally actionable? Would I get caught up in the resulting legal battle? I lost a lot of sleep worrying about it.

This was the first time I looked into errors and omissions insurance. But the advice I received was that it should be the owner’s responsibility. So I requested that I be included in their incorporated company’s coverage for any legal actions resulting from the project.

As I recall it became quite a negotiating issue. The owners fought hard against it, arguing cost. I insisted upon it to the point I was willing to take less cash upfront. This they liked. So for less cash I was included in their coverage.

Turns out their reluctance had been a calculated negotiating ploy. I learned later from an insider that adding me to their insurance cost them nothing. But I was satisfied. I was protected in the event of any lawsuit and that would be worth a lot more than the reduction of my writer fees.

Long story short: the project foundered. It was all for nothing.

Or was it? It left me with an invaluable legacy: a lasting awareness of my legal vulnerability as a freelancer on projects with principals not as risk-averse as I was when I was not in direct control of the outcome of my work.

So what do I propose?

I propose negotiating any contract that foists legal liability onto freelancers.

If you are unsure, consider joining CMG Freelance so that you can have your union representative review your contract.

It doesn’t make you a troublemaker if you negotiate a contract. It makes you a professional.

If there’s something in your contract that you don’t understand or think isn’t fair – question it. Do not accept the verbal assurances of anyone who tells you what is in the contract doesn’t matter. They aren’t lawyers. Everything in a contract matters.

Your risk-aversion will differ from mine. In almost all cases I will no longer agree to any clause requiring me to indemnify a publisher/broadcaster. (In the rare exceptions I require stringent safeguards). And depending upon the nature of the work, I will insist upon being included in the publisher’s/producer’s insurance coverage. (I learned my lesson).

If there is opposition to either of these conditions I must reappraise their integrity and my willingness to work for them.

But what if they won’t negotiate?

Then you must ask yourself, is it worthwhile potentially risking your neck, financially? If they won’t negotiate there must be a reason. Maybe they are more aware of circumstances being higher risk than are you. Or maybe they don’t bother fact checking.

But perhaps you’re not the negotiating type. Or don’t have an agent to do it. Or just fear losing work.

Then there is no choice. You must look into getting errors and omissions insurance. And it will cost you. So you will need to negotiate a higher fee to recover it.

As I see it, these are the two alternatives now facing every freelancer. Negotiate fairer contracts with greater mutuality or get coverage.

And, sadly, the way things are going I can also foresee the day that both steps could become necessary.

But I don’t write anything controversial. Why should I worry?

Let me end with the story I once read of an infamous incident. It involved a fictional play, pure fantasy, nothing anyone could possibly take offense to nor any legal action against as it was the most non-controversial topic imaginable.

Fortunately the creative team had a good agent who inserted a clause in their contract with the broadcaster that in the event of any resulting legal actions, the broadcaster would rightfully assume all responsibility and the creative team would be held “harmless”.

It was a good thing for Orson Welles and his Mercury Theater creative team that their agent had done so. For on October 30th,1938 CBS Radio broadcast their adaptation of the H. G. Wells classic “War of the Worlds” about a Martian invasion of the Earth.

Unbelievably, millions of listeners panicked as they thought the play (enacted as radio bulletins) was for real.

Lawsuits followed.

The contract prevailed. Orson’s Mercury Theater was not legally responsible. CBS had contractually accepted full responsibility.

But who could’ve foreseen it? Nobody… except one highly competent agent.

I hope Orson took them out for a really good dinner the next night.

The takeaway

Reread Sara’s excellent posts again.

It’s still not too late to collectively reverse the trend of increasingly punitive contracts weighted unfairly against us by refusing to accept them as is. Negotiate them! It won’t be easy and it may cost you in the short term but if more of us do it the better things will become for everyone.

Remember, in the end, they don’t have the power. We do.

Equitable employers negotiate in good faith. If they won’t, there’s a reason. Walk away.

You might just be saving yourself everything.

Have any thoughts on insurance? Got some yourself? Or any thoughts on negotiating fairer contracts? Let us know in the comments below.

 

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