The Renegade Writer Blog

Many thanks to contracts expert Erik Sherman for offering to answer Renegade Writer blog readers’ contract questions! We received very interesting questions that many writers can relate to.

Erik is a fulltime freelance writer and photographer with credits including the New York Times Magazine, Newsweek, Newsweek Japan, Fortune, Inc, Continental, the Financial Times, Saveur, Scuba Diving, AARP, and Advertising Age. He teaches classes in contracts, business planning, and marketing for writers. His WriterBiz site has free resources for freelancers, and he continues to review contracts (the only cost is signing up for his blog email delivery) even as he leaves ASJA’s Contracts Committee.

Please note that Erik is not a lawyer and his answers should not be taken as legal advice.

Q. A new publication originally wanted to obtain the copyright to potential articles I was going to write for them. However, they then said that they could change the wording of the contract but still said: “We just need to be able to put stories in print and archive them on our website, as well as pull content from past stories for future stories.” They would pay about $0.50 per word.

A. I’m assuming that you’re wondering if there’s a way to change the wording. Copyright is considered a bundle of rights - really the overall right to give permission to use your work in any way, and with any restrictions, that you see fit. So you can license a publisher to use First North American Serial Rights (the first time the article appears in print in North America) as well as non-exclusive rights to archive the story on their web site. However, there are a number of problems with “pulling content” from past stories. Will you be given credit? How will the material be used? Is anyone going to update it, or do you run the risk of appearing to be professionally inept if the facts or references are wrong? These are all decisions you have to consider when granting permissions for future use. It’s one thing to have a story appear in an archive - or even appear in an anthology of past stories - where there is a presumption on the part of the reader of seeing something from the past. The situation is considerably different if it is presented as something current unless someone takes care that it is.

*****

Q. Any advice on this guide book contract? Here is, in general, the terms: The contract offered is: for a guide book of 37,000 to 40,000 words, with 60 to 80 images. No advance; 10 percent of publisher’s net receipts then 12 percent after 2,500 copies. 50% of Publisher net receipts to Author for: Quotation Rights, Anthology Rights and Mechanical Reproduction rights. The book would be a compendium of sites, loosely organized as a trail, and with a map about the history of the topic. The idea is that it is both a guide one could carry, or something that one could read as a history book.

A. This is difficult to answer, because a contract involves much more than royalty rates and I’d really need to see the actual contract text to get a clear idea of exactly what the deal is. For example, what rights must you license? Do you retain copyright? As for the money end, notice the phrase “net receipts.” That can mean the money the publisher gets from the bookseller after a discount that might run anywhere from 30% to 50%. Net will also mean that you must subtract returns, and many publishers routinely take returns for six months. You will also have to deduct shipping if the publisher is paying - but is the customer reimbursing the publisher and might this become a way of cutting down the royalty? Absolute specificity is of prime importance.

Also, who is paying for the rights to the images? Unless they come from 1922 or earlier, it’s copyrighted material and you need to get permission, and that might cost money. Owning copies of photographs doesn’t necessarily mean that the group has the right to reproduce them in a book. And who pays for creating the final version of the map?

Now remember this unpleasant fact: the vast majority of books never earn out their advance. That means you might make very little. Say that it only sells the 2,500 copies at, oh, $15.95 a copy. That might mean about 75 cents a copy, or $1,875. You have to work out the figures to see if it’s a good deal for the organization or not. It might be better off hiring a designer and publishing the book itself, then selling it through small shops and directly approaching bookstores. Let’s do another calculation: you hire a designer for $1,000 (just pulling these numbers out of thin air at the moment) and printing costs you $3 a copy (which is actually significantly higher than it should be). You sell 700 copies at 50% off the same cover price. So you get $4.97 a copy and gross $3,479, less the $1,000 to the designer, and you have $2,479, or more than you’d get through the company. You have significantly more work because you have to sell the books, but it might be worth considering.

*****

Q. I received a contract that says I assign the “moral rights” of my work to the work to the publisher. What does this mean?

A. Moral rights - or adroit moral - is a European copyright concept that gives certain rights to someone who creates something. Those include the right not to have someone modify the work without permission, the right to expect to be credited for creating the work, and the right not to have someone use the work in such a way that it becomes a professional embarrassment. Unfortunately, writers in the United States do not have these rights. Such clauses are generally included either because the publisher is international in scope and wants a unified approach or because it uses content from Europe. But if you are from the U.S., you have no such rights to assign.

*****

Q. I have a question about this clause in a contract I recently received from an e-zine. “Freelancer represents and warrants that all Works submitted to Magazine hereunder shall be Freelancer’s own original works of authorship based on accurate reporting of information obtained by Freelancer. Freelancer further represents and warrants that such Works have not been licensed to, assigned to or used by any third-parties and that the Works shall not infringe upon any proprietary rights (including copyrights) of any third-parties. Freelancer shall indemnify and hold Magazine harmless from and against any and all suits, claims, actions, damages (including reasonable attorneys’ fees) or injuries to any person or property that are caused by or result from Freelancer’s breach of the representations and warranties made hereunder, or Freelancer’s performance of services in connection with this Agreement or the publication or use by Magazine of any Work provided by Freelancer.”

I insisted upon adding the phrase, “to the best of the writer’s knowledge,” to the end of the first sentence. I have added this phrase to contracts from more prestigious publications with no objections from my editors. In this case, however, the editor refused claiming this part of the contract must remain as-is in order to preserve the magazine’s indemnity in the event of legal action. I consulted my lawyer who agreed with me that adding this phrase would only protect me, the freelancer, from being sued by some writer in Kuala Lumpur, or whatever, who claimed I ripped him off. It would not effect the indemnity of the publication at all. In the end I did not accept the contract. My question is, am I right to insist on altering a contract that reads like this, or will I be considered unreasonable and cost myself jobs because I’m trying to protect myself? Is there a better way to alter the contract or explain my reasoning to editors when I am negotiating?

A. It is reasonable for a publisher to expect a writer to warrant that he or she is not stealing another’s work and that the writer actually has the rights being licensed. The problem is that the statement of what the writer guarantees is usually made more broadly in one place or another, so there does need to be some limitation, not only for actions that might be brought up in another country (and, frankly, the UK and Canada should be much bigger concerns than Kuala Lumpur), but because there may be rights that you have no idea exist and for which you reasonably don’t want to indemnify.

I generally will absolutely grant the copyright infringement warranty but limit others to my knowledge, and now I’m beginning to add “as determined under U.S. law” if the contract doesn’t specify the set of laws governing its interpretation. In the case of this wording, I’d have changed it as follows: “… and that the Works shall not knowingly infringe upon any proprietary rights (including copyrights) of any third-parties.” The reason I add it there is that the sentence is not restricted to copyright.

However, there is another problem: “… or use by Magazine of any Work provided by Freelancer.” My advice is warrant only that which is under your direct control (hence the “knowing” part) and indemnify only for what you warrant. You have no idea how the magazine might use the work. For example, there have been successful lawsuits brought by people whose pictures were put into close proximity of a pejorative headline, making it seem as though they were meant to be illustrations of the condition. You can only control what you wrote, not what they do with it, so that part is something to strike.

*****

Q. Having read, highlighted and studied The Renegade Writer and spent the past few months polishing and sending query letters that I hope rocked, I finally got my first assignment from my favorite national magazine. I was so excited, I didn’t even flinch when the all rights-grabby contract arrived, so prepared was I to brave the Negotiation. Encouraged by your excellent advice, bolstered by supporting advisories from ASJA, and armed with the graciousness mom gave me, I made that difficult phone call to the editor … and got a big dose of ick. “No, we don’t buy First N.A. Serial Rights. No, we don’t offer non-exclusive rights. All of our contributors sign this contract. [my own note: this mag features many nationally known writers -- can this be true?] As part of Gigantic Media Company, we retain all rights for other uses. No, there is no additional compensation. If this doesn’t work for you, I respect that, and I can find someone else to do the piece.”

I am still reeling from the beating. I’m not sure there is a question in here, but maybe I’m looking for some reassurance from the group that this was an exception, not the rule, and that I will have better luck next time, if I can lick my wounds and summon up the nerve to try, try again. In the meantime, … is there any time when giving it all away, including all those warranty/indemnity protections, is tolerable? Thanks for listening. (Now please pass the bandaids.)

A. First step to better negotiation and better business is to remember that there is no beating - only a difference of opinion that is irreconcilable. Many nationally-known writers sign bad contracts because they either don’t care, are foolish about business, or are scared to negotiate. That said, there are also plenty of editors who claim, “Why, no one has ever brought up that issue before!” Equine-generated fertilizer. Of course they have. The editor is probably hoping that you won’t know that.

Most reputable publishers will negotiate to some degree, because they realize that they need to. More established writers may have more advantage in negotiations because there is more of a drive to use their work. Also consider that if a publisher is so inflexible before you write word one, how reasonable will it be during the edit process?

The main thing to remember is that you were not beaten up. You simply said no because the conditions were not acceptable to you. That’s called being responsible for your business. [lf]

Share This