Focus on freelancing: Keys to negotiating fair contracts Date: 03/28/13
By Irene Wielawski
There’s no shortage of war stories among freelancers about the kinds of contracts they’ve been asked to sign. Some go on for many pages, others are marvels of straightforward simplicity. The worst ones demand – in addition to a well-researched, cogently written and accurate story – guarantees against any error that could possibly occur along the road to publication.
This nonsense – for lack of a better word – is usually found in the “indemnity” clause of freelance contracts, and it’s often accompanied by a requirement that writers pay not only for their legal defense but also for the publication’s – plus any damage awards resulting from a lawsuit.
I never sign contracts with indemnity clauses and neither should you. Here’s why:
Writing for publication is collaborative work. I can’t think of a single published story of mine that bears my fingerprints alone. The work passes through many hands, including assignment and copy editors, headline writers, and production people. There also may be substantive contributions by graphic artists, photographers, and data experts. In the case of longer works – magazine pieces, book chapters, reports – there may be reviewers, fact checkers and others involved. So where’s the logic in asking the writer to guarantee the work of all these partners?
The good news is that I’ve never lost a job by refusing to indemnify a client or by requesting other changes to a proposed contract. But it took me a long time to speak up; hence, this confessional to urge my fellow AHCJers to stand tall from Day One.
As a new freelancer, I thought if I squawked I’d never work again. I held my nose and signed some pretty awful contracts, then held my breath that nothing would go wrong. I experimented with hiring a lawyer for contract review but spent so much time (billed to me!) educating him about journalism, our ethical framework, areas of legal vulnerability, etc., that I ended up with a net loss on the assignment.
I continued to sign contracts of uneven quality until I received one so draconian it forced me to speak up. The contract was for a plum assignment – challenging and well-paid. But by page four of single-spaced legalese laying out a seeming lifetime of open-ended legal and financial liability, I realized I couldn’t afford the job.
Glumly, I called the editor to withdraw. He hit the roof when I illustrated my reasoning with a dramatic reading of his company’s indemnity clause. It turned out he’d never seen the contract; it was mailed to me directly from the company’s legal department. The next morning my fax machine sputtered out a replacement contract consisting of a single sheet of paper on which the editor had memorialized in plain English the assignment, time frame and fee that we’d discussed, period.
I now routinely cross out indemnity clauses and legalistic phrases that I don’t understand or that confer obligations on me unrelated to the assignment or beyond my ability to guarantee. For example, one contract’s “confidentiality” clause required me to promise to only use information “lawfully obtained” from people who were not breaking non-disclosure agreements of their own. I could easily promise the first part but vouching for the integrity and actions of others? No.
I also sometimes add language to memorialize the standards of journalism that I adhere to, particularly when the contract is with a non-news organization. For example, I routinely insert the word “ethical” into the warranties section of a contract and then lean on AHCJ’s Statement of Principles and the AHCJ-endorsed code of ethics of the Society of Professional Journalists if details are needed. This is to protect me from client policies or practices that run counter to our professional standards. And, contract notwithstanding, I don’t hesitate to ask for contract extensions with supplemental payment if the scope of work proves greater than the initial agreement.
The main lesson I’ve learned from these experiences is to approach contract negotiation as a respectful conversation in which both parties can respond to each other’s needs. Although the initial contract document can be off-putting, it’s rare that my explanations of why I need language or conditions changed are rebuffed.
I’ve also come to see this conversation as an opportunity to test drive the professional relationship. If an organization’s response is disrespectful or unreasonable – or the editor claims helplessness – you probably don’t want your work in their hands.
Irene Wielawski, a founding member of AHCJ, is an independent writer and editor specializing in health care and policy topics. Previously, she was a medical writer for newspapers. Her work appears in The New York Times, Columbia Journalism Review, Health Affairs and peer-reviewed journals and books. Honors include two team Pulitzer Prizes and a Pulitzer finalist citation for medical journalism. Wielawski, a member of AHCJ's board of directors, is co-chair of AHCJ’s Right to Know Committee and also serves on the Freelance and the Finance and Development committees. You can follow her at @wielawski.