Reading and Negotiating a Freelance Contract

 

Boston-based journalist Aleszu Bajak was looking forward to seeing his magazine feature story about birdwatching in the avian-rich country of Colombia in print—until his editor said, without detailed explanation, that the piece wasn’t going to run. Fellow journalists asked Bajak if he’d be getting a kill fee, a percentage of the contracted fee for a canceled story. “I was in my first couple years of freelancing,” Bajak says. “I’d never even heard of a kill fee.” Not only that, but he hadn’t even signed a contract.

Taking his friends’ advice, he composed an email to his editor asking for a kill fee. The editor agreed and offered Bajak 25 percent of the original agreed-upon pay for the article—a typical arrangement. Since then, Bajak says, he always signs a contract before beginning assigned work, and he makes sure that contract includes a kill fee.

What Bajak learned from that experience is valuable for all freelance journalists. Many science reporters either don’t know how to negotiate shrewdly or are afraid doing so could lead to lost opportunities. But not reading and negotiating on contracts can carry real costs. It can cause unnecessary payment delays. It can result in journalists unknowingly giving up the rights to their work, in which case their story could be republished, translated, or even turned into fodder for a movie, all without financial compensation. And it can leave journalists, instead of media outlets, responsible for legal costs in the case of a lawsuit—even a spurious one.

Amy Lehman is an attorney and director of legal services at Volunteer Lawyers for the Arts, a New York–based non-profit that provides legal help to those who can’t afford it. She always tells people to get their contracts in writing. “A contract can be an oral agreement, which I advise against,” she says. “It can be an email. It can be on a napkin. But you should get something in writing.”

If freelance writing is your career, then honing your negotiating skills is a key to the craft. And that means understanding what terms like kill fees, indemnity clauses, and copyrights mean and how to negotiate for better contract terms.

 

Be Ready to Walk Away

Successful negotiation requires being willing to walk away if needed. And that’s hard to do, especially for journalists who are early in their careers or who are in precarious financial situations. For some, other contract terms are dwarfed by the need to earn income—and so negotiating is often limited to seeking higher fees. “If I were less cash-strapped, I would spend more time negotiating,” says San Diego journalist Ramin Skibba, who has been freelancing since 2017. “But right now I just have to make the most of my time and get stuff published when I can.”

Many freelancers, all too aware of the uneven power dynamic inherent to freelancer-editor relationships, worry that by negotiating, they may risk losing assignments or making editors think they’re difficult to work with.

Most editors are sympathetic to the challenges freelancers face and view polite, well-informed efforts to negotiate as simply part of doing a professional job.

But most editors are sympathetic to the challenges freelancers face and view polite, well-informed efforts to negotiate as simply part of doing a professional job, says Michelle Garcia, former deputy editor for news and issues at Vice News. She acknowledges that editors have the power to decide whether to publish or cancel a story. But, she says, “Writers don’t necessarily have the same type of power, but they do have the power to say ‘All right, forget it, I’m going to publish somewhere else.’”

That’s not to diminish the risk that negotiating can carry. Not every editor takes kindly to requests for contract changes. And Psychology Today editor-at-large Hara Marano says journalists’ leverage for negotiating is greater after they have proven their value. “Once a writer has established a reputation of reliability with an outlet, then I think it’s all right to ask,” she says. “I’ve seen a lot of writers just belly up to the bar with demands before they even prove themselves.”

She also cautions writers to wait until they’ve secured the assignment before negotiating. “Don’t negotiate until you’ve established that you have something that they want,” she says, “and that they know roughly how you’re going to carry it out.”

 

Know Your Rights

Tim Harper has stacks of contracts from publications all around the world. He’s a professor at the Craig Newmark Graduate School of Journalism at the City University of New York, where he teaches about the business of freelancing. If you were to sit in on one of his classes on any given day, you’d likely find him passionately opining to the class about the significance of journalists owning the rights to their work.

“You don’t want to sell your rights,” says Harper. “You want to rent them to the publication.” Harper says his ideal arrangement is first serial rights, in which a writer retains the copyright, but gives a publication the right to be the first to publish a story. Later, the publication can republish the piece (or continue to publish it on its website), but so can the writer.

Many publications, however, don’t offer these terms. Some bigger publications, like glossy magazines or prestigious news outlets, may want all-rights contracts because they know that the journalists want bylines there and will sacrifice some rights to get them. Instead, such publications often commission articles on a “work-made-for-hire” basis. Such contracts are also known as “work-for-hire” or “all-rights” contracts.

Signing such contracts is often a “big mistake,” says Harper. “It means that you don’t have the rights to your story anymore. It’s their story. They can do whatever they want to with it, including selling it to somebody else who would be making the movie.” That matters because reselling stories, especially for film or TV, can provide significant additional income for the writer, sometimes far more than the payment for the original story.

Sticking to your principles without being willing to bend can mean walking away from lucrative opportunities.

That doesn’t mean no one should ever sign a work-made-for-hire contract, Harper says. He describes negotiating as a balancing act in which both the writer and the media outlet have to compromise. Sticking to your principles without being willing to bend can mean walking away from lucrative opportunities. Harper once signed an all-rights contract for a small piece because in exchange for giving away all rights to the story, he was getting paid $5 a word.

“I figured I wouldn’t be able to sell it again anyway, and I was getting enough money that it was worth it,” he says. “These are all business decisions. What I would like people to do is think about all these things in terms of, ‘I am running a business,’” says Harper. “Not, ‘I have a hobby that pays me sometimes.’ Or, ‘These people are doing me a great favor by letting me write for them because there’s so many other people they could go to.’ There’s a reason they’re talking to you. They want you.”

If you don’t like your contract, it’s not unreasonable to ask for a different one. “I’ve found that a lot of publications have different versions of their contracts,” says Hillary Rosner, a Boulder-based freelance journalist who also teaches journalism at the University of Colorado. “First they’ll send you, the bad version, and when you say, ‘I don’t usually sign a contract with this particular rights agreement. Do you have a different contract?’ they’ll send you the good one. And all you have to do is ask for it.”

If a publication doesn’t have a more writer-friendly version of their contract, writers can still request that specific changes in language be written into the contract. This doesn’t always work, and can depend on the publication, legal team, and editor. But it’s not unusual or unreasonable for writers to ask for more-favorable terms. If you do so, you should just be prepared to explain your reasoning, and you should know whether you’re prepared to walk away from an assignment if your negotiating doesn’t succeed.

 

 

Key Contract Terms to Watch For

When negotiating, different journalists prioritize different contract terms. For an investigative journalist, indemnity clauses might be key. In contrast, a full-time freelancer who mostly covers non-controversial topics, terms of payment might be the main priority. The seven journalists I interviewed for this story all listed rights, indemnity clauses, and pay as their top concerns.

Rosner’s first concern when she reads a contract is the payment terms—after all, a writer does have to eat. After that, and even before she considers the rights section of a contract, Rosner’s first concern is its indemnity clause. This is a clause that details which party in the contract is held legally responsible if the story prompts a lawsuit. Often, contracts are written in such a way that the journalist must indemnify the publisher, leaving the journalist on the hook for all legal costs connected to their story. (See the sidebar for a detailed explanation of options for handling indemnity clauses and other contract terms.)

“I think you need to think about how controversial is this piece you’re writing? Is this something that I’m willing to take a risk for?” Rosner says. “It’s one thing if you made a mistake, but it’s another thing if somebody took offense because they don’t like the way they were portrayed, and they’re going to sue the magazine and you, and nobody will have your back.”

Rosner has walked away from contracts before because of an indemnity clause that isn’t friendly to writers. While she’s found that publications rarely strike their indemnity clauses altogether, she has gotten publications to agree to small changes in language such as those described in the sidebar.

The most important thing to remember is that there doesn’t need to be any emotion in negotiating.

When negotiating, Rosner says, it’s important to keep your cool. “The most important thing to remember is that there doesn’t need to be any emotion in negotiating,” she says. “You don’t need to be apologetic. It’s just a business transaction.” She normally begins by emailing editors a bullet list with her requests. “The tone is just, We’re on the same page here,” she says. “Like, ‘Hey, thanks so much, I’m looking forward to doing this story. A couple things jumped out at me in the contract. Should I take those up with you or [someone] in the business department?’” Usually Rosner goes back and forth about two to three times on contract negotiations.

Seattle-based freelancer Bryn Nelson says indemnity clauses are his top priority in negotiating contracts. He won’t sign a contract with an indemnity clause that doesn’t protect him.

Other contract terms that concern him, but which he sometimes feels more open to negotiation about, are work-for-hire arrangements and non-compete clauses, which limit his ability to cover the same or a similar topic for other publications for some period of time. These issues are less iron-clad for him. Rather, he sees them as an opening to a negotiation. “For journalists, seeing those in a contract may be an opportunity for you to either strike that language or say, ‘Okay, if you’re going to hold me to this, then you need to pay me more,’” says Nelson.

Another thing Nelson often negotiates is when payment will be delivered. Some publications pay writers only after their stories are actually published. But as Nelson notes, it’s to writers’ benefit to be paid as soon as a story is accepted for publication. “If you do a really long feature story for a magazine who might sit on it for a while, and they say payment is only upon publication, that writer is out of luck for the six, seven months until it is published,” he says.

When Nelson started out as a newspaper reporter, he didn’t have to worry about contracts. But as he transitioned to freelancing, he quickly realized negotiating was a skill he needed to employ. “There’s always the question of, this is going to be annoying to the editor and it’s going to hurt my relationship,” he says. “But I realized it actually shows you’re paying attention to details, and that you’re advocating for yourself. And a lot of times, editors are perfectly willing to go to bat for you.”

 

 

 

Shira FederCourtesy of Shira Feder

Shira Feder

Shira Feder is a New York–based writer currently covering health for Business Insider and a TON fellow sponsored by the Burroughs Wellcome Fund. She covers science and culture and has written for Vox, The Daily Beast, Huffington Post, and others. Follow her on Twitter @shirafeder.

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