Copyright, warrantees, indemnification. Mention these words to editors and it’s likely their eyes will roll up into their heads. Yet in today’s fractured media landscape, where content is syndicated, pushed and repurposed across a variety of product lines, freelance contracts have to accommodate the full range of content’s potential and at the same time make sure the contributor is fairly compensated. And it’s not just about making sure your writers get paid and you’re squared away with sufficient rights coverage, it’s knowing ahead of time what other products can use the content a freelance writer or photographer is agreeing to contribute.
Online usage may have caused publishers to re-examine how their contracts are structured, but it’s more than that now. "You can’t even say ﾑonline,’" says Erik Sherman, freelance writer and chair, contracts committee for the American Society of Journalists and Authors (ASJA). "How about television? How about radio? What happens if your story gets turned into a movie which gets turned into a Broadway musical?"
Know Your Content Strategy
A key issue in structuring rights and compensation is determining where any given content may end up. "One problem is everybody’s trying to make deals without giving any thought to the rights issues," says Sherman. "Publishers are not thinking about what material they own, what they don’t own, and are not being careful about the deals they make. How many times have you seen a managing editor who’s told ahead of time or even consulted about the types of deals that a publication is trying to figure out? It doesn’t happen."
Even publishers that commonly seek first publication and all electronic rights to cover both print and electronic usage may be selling themselves, and their contributors, short. "What does [electronic rights] mean?" asks Sherman. "Is it the right to put it on the Web? Is it the right to include it on a CD version of the magazine? ﾑElectronic rights’ is too vague."
Jason Snell, vice president and editorial director at MacWorld, says he gets both print and electronic rights to contributed articles, but his contract goes a few steps further. Feedback from writers has resulted in a provision that allows them to repurpose the content they contribute after three months on platforms of their choosing. "These people don’t just write articles for a living. They write books and create Web tutorials and videos. Writers get a license to use the content again for their own purposes. Even though we want to make sure we’ve got the rights to reuse the story later, we want to make sure they do, too."
Snell adds that the repurposing benefits cut both ways. "We definitely rely on the ability to recycle the material after the fact. For example, an article about making digital photos look better will appear in print, make its way to the Web and will eventually end up in a PDF compilation about digital photography."
While Snell says that the writers will initially get paid once for the original piece, they’re invariably invited back to update their story, which has become outdated by the time the PDF product is created. The writer gets paid again for this additional work.
Aligning Business Interests
Sherman recommends gathering the business side, the editorial side, and invite a writer or two to hammer out a contract template that everyone can agree on. "I know a lot of writers who’d be willing to license rights if they were seeing something out of it," says Sherman. Then bring in a contract lawyer to polish it.
From there, educate your editors on contract language and copyright. "If you’re an editor, you’re a manager, and you need to understand the basics of this," says Sherman.
Critical Elements of a Freelance Contract
If you plan to restructure your freelance contract, keep these points, via ASJA’s Erik Sherman, in mind to ensure all parties are comprehensively and fairly accommodated.
- Rights: You have to be very clear about what rights you need. Don’t ask for more because smart writers will to want you to pay more. What’s your intent with the content? What do you eventually want to do with it? Option it if you want to put it on another platform.
- Payment: Make sure you account for all outcomes. If payment is tied to the word, what happens if the word length has to vary? Consider ahead of time how you’re going to deal with a story that’s going to shrink or grow in size. Also: Pay on acceptance, says Sherman, and define what acceptance means.
- Editing: What edits can you do? Are there edits a writer can refuse? If a writer thinks you’ve butchered a piece, he or she should be able to pull their byline.
- Non-compete: Some publishers try to prevent writers from writing for the competition. Unless you’re paying them a retainer fee, don’t bother with a non-compete.
- Warrantees: These are the promises the writer makes, such as promising the material is not plagiarized. Make sure you ask for promises the writer can reasonably keep.