Contracts can be seen as both a pain and a point of pride for freelance journalists. On the one hand, receiving one means you’ve landed an assignment — a win. On the other hand, the documents can leave you in risky financial and legal territory — often without you even realizing it. After all, contracts can be cluttered with legalese, and it’s tempting to just skim-and-sign so you can get to the actual work.
But during May’s Lunch and Learn, AHCJ’s freelance members learned why it’s critical to understand what you’re agreeing to, what exactly to look for in a fair contract and how to negotiate for changes that will protect you and your work. Here’s a summary of what we discussed.
Read indemnity clauses carefully
An indemnity clause specifies who will be responsible for any legal costs and claims that arise from your story. If you indemnify someone (or, in this case, something — a publication), you essentially “hold them harmless,” another term that’s often used interchangeably or side-by-side with “indemnity” in contracts.
While in the past, such clauses typically said the writer was only liable if they were at fault (say, they reported a false and defamatory accusation), the clauses are now more often holding the writer responsible even if it wasn’t their fault. In other words, some outlets are saying to freelance journalists: “If either of us gets sued for something either of us did, you take — and pay for — the blame.”
Clearly, this is not OK and should be fought. For example, you can request an edit to the contract that states you’ll only indemnify the publisher in two situations: If an outside review shows you knowingly and maliciously reported something false, and if you plagiarized. (The Freelance Investigative Reporters and Editors has a contract template that includes language you can draw on for help on how to phrase this request).
If the publisher refuses to alter a double indemnity clause, you have a few options:
- Refuse the assignment.
- Accept the assignment and get liability insurance, like from biBerk, which several AHCJ freelancers said they use.
- Accept the assignment and take the risk. The risk of being sued is a lot smaller for an explainer on the health benefits of blueberries than an investigative feature on a hospital’s protocols leading to preventable deaths. It’s up to you to weigh the costs before signing (or not).
Look for a kill fee
Another important piece to look for in a contract is a kill fee — or how much, if any, a publisher will pay you if the story ends up not running due to something out of your control. From my experience, as well as other webinar attendees, kill fees typically range from 25% to 50% of the story’s original rate.
One Lunch and Learn participant said she had to fight for a kill fee on a massive, many-months-long project that paid $20,000. After reporting and writing the full in-depth series at the expense of other work, leadership changed at the organization funding the investigation and killed the whole package. The writer’s contract specified she couldn’t sell the story elsewhere. But because she’d secured a 50% kill fee, she was able to stay financially afloat.
Fight for your rights
Some contracts will attempt to bar you from writing about the same topic for other publications, which is reasonable — to an extent. Asking a freelancer who specializes in cancer research not to cover a particular study on a breakthrough treatment makes sense; asking them not to cover cancer at all does not. You can request changes to what might be called an “exclusivity” or “non-compete” clause, then, to narrow the scope of what the publication has unique access to.
Similarly, many contracts say the assignment is a “work for hire,” meaning the publisher owns the copyright to your story. So, if a book publisher or filmmaker or podcaster wants to use the material, you won’t see any more cash. Even if you want the option of including the piece in a later collection of your work, your hands will be tied. However, you can request a change to that part of the contract that reverts ownership back to you after a period of time, like a year, attorney Charles Glasser told freelancer Barbara Mantel in an earlier AHCJ webinar.
It can feel intimidating to negotiate a contract — especially when you’re thrilled to land the story or work with a prestigious publication. And the outlet’s legal department might tell you they can’t budge, or that no other contributor has had a problem with their contract’s language. Don’t buy it, one AHCJ member who frequently negotiates her contracts — or walks away — said. “There’s no such thing as a contract that can’t be changed,” she said.
