Ed. note: Early on in my freelance career, I learned the importance of having a good contract after getting burned a few times. Now I don’t start work with a new client until I have a signed contract outlining the scope of the project, the terms of our relationship, and so on. In rare cases, I might outline the terms via email but having a formal contract is preferable. Read on for this informative post about the different types of writing contracts and what to look for.
By Veronica Picciafuoco
A writer’s job is to write, not think about administrative and legal overhead. Still, a contract provides invaluable protection, and we hope you’re taking advantage of some legal resources for freelance writers. But what are you actually getting into when you sign a contract? Legalese can get cryptic and hard to read. It’s time to have a look at some samples of the most common agreements in the industry, and try to understand the legal implications, so you can be aware of what you are agreeing to.
This is the most common way to hire a writer. In a “work for hire” relationship, you are an independent contractor hired to create specific content for the client. Independent contractor status means that you are not an employee – that is, you:
- work without direct supervision;
- are not subject to to payroll taxes (but you must pay on your own);
- procure your own materials (but you can charge for expenses);
- are not afforded the benefits and protections of ordinary employees, like worker’s compensation or unemployment insurance.
Always read carefully the clause about intellectual property. In a work for hire, the ownership of the work is usually automatically assigned to the client. This means you won’t have much leverage if the client delays the payment for some reason. A good way to mitigate this risk can be asking for a downpayment, but you can also find ways to retain rights to the work should the client not publish it after a certain amount of time.
There’s also an upside to signing a work for hire. As a corollary to giving up the copyright to the work, the sample agreement above indemnifies you from potential liability stemming from the work. If someone sues for defamation or otherwise, it will likely be the client, but not you, who gets hauled into court.
Have you ever started writing for a publication with nothing more that an informal understanding? Bad! You should always have a written contract signed before starting the job, as it will be so much easier to enforce. However, you can still try to fix this mistake by creating a paper trail, an easy way to get the terms in writing and help your case should a dispute arise.
A letter of understanding to the client should not be confrontational, but should set out all the relevant details. What is the nature of the assignment and its parameters (subject, word count, deadline, etc.)? How much will you be paid and when? What happens if there’s a problem? The template letter provided by ASJA (American Society of Journalist and Authors) is a good starting point.
Copywriting is a good way for a creative writer to make some money. This sample contract for writing copy for a website is written from the writer’s perspective and in plain English. No matter the style, the basic elements remain the same:
- the work to be done, it’s structure and deadlines, and provisions for editorial changes;
- the copyright assignment, that occurs only upon full payment of the price;
- the negotiated fee, and what happens if one of the parties wants out.
Note the writer here retains the right to display the work in his portfolio – not a bad idea if you’re thinking about the next job.
If you’re interviewing someone for a book or an article and plan to use their statements, it’s a good idea to secure your rights. In this contract, both the materials provided by the subject as well as the information that you disclose in the process may be valuable. This document covers the following main points:
- the subject of the interview signs over her/his rights to the materials provided to you;
- she is also waiving any legal claims she may have regarding the way you use the materials;
- she is agreeing to keep confidential everything you tell her about the project
- you are promising to keep confidential the interviewee’s identifying information unless and until she consents to its release.
This sample is biased in favor of the writer’s needs, but can be negotiated on a case-by-case basis. Make sure your contract gets across the necessary legal points while remaining proportionate to your aims.
Ghostwriting is very easy to understand: you write a first draft for someone, and they review it and publish under their name. Legally, it can be extremely complicated, as it clashes with paternity rights, that cannot be legally waived in some countries. In his simplest form, this contract is very similar to the work for hire agreement discussed above.
Note that the ghostwriter not only gives up all rights to the work, but he will also indemnify the client from all legal claims relating to scandalous, libelous (defamatory) or unlawful content. While this provision has little applicability in commercial contexts like the one above, it can be definitely mitigate it with some exceptions or a cap.
Disclaimer: This article wants to be useful and informational, but keep in mind it is not legal advice and all the legal documents cited are only to be used as a starting point. The author, the publisher, and the original authors of the documents cited disclaim any liability connected to the use of these material without a licensed attorney.
Veronica Picciafuoco is the Director of Content for Docracy.com, the home for free, open source legal documents. She has a legal background and works closely with startups and freelancers in Brooklyn, NY. You can find her on Twitter, Linkedin and Tumblr.