A Primer on Contract Negotiation and Rights Management

How to negotiate, what terms to watch out for, and other contract questions answered by a lawyer.

Lots of sociopolitical and economic factors have produced the imbalanced conditions under which freelance media workers negotiate work contracts now: Isolation from other workers; an atmosphere of desperation amid harsh layoffs and budget cuts brought on by rich owners; and worries about getting enough assignments to make rent in a perpetually unstable landscape. These realities that can make advocating for ourselves feel like a risk.

Contracts and negotiations in freelance media work are becoming less obscured thanks to support networks like Study Hall and unionizing campaigns like the IWW’s Freelance Journalists Union and the NWU’s Freelance Solidarity Project, along with knowledge sharing on social media. Contract negotiation is still challenging and laborious for freelancers, but accessible legal resources, combined with peer advice and solidarity, can make the process more successful, less strenuous, and certainly less lonely.

Being a freelance media worker often requires being both a well-versed labor advocate and an assured negotiator with a thorough understanding of legalese. As media freelancers and lawyers explained to me, pushing for better contract terms isn’t just for your own benefit. It stands to benefit freelance media workers everywhere. Divided into three sections, this guide will introduce you to negotiation techniques as a freelancer, common exploitative terms to watch for in contracts as explained by lawyers, and how negotiating can impact freelancers everywhere.

1. Developing Negotiating Skills

Seattle-based independent journalist Wudan Yan believes negotiating contracts is a critical skill for freelancers to develop. Yan has been freelancing for five years, working with publications like the New York Times, NPR, New Yorker, BuzzFeed, and more. Here are some of her tips for developing sound, confident negotiating skills.

Check for a local legal advice clinic or similar services in your area. Accessing affordable or low-cost community legal services can provide freelancers with legal expertise without spending tons of money. After a few instances working without a proper contract, or with poorly defined email contracts, Yan attended a walk-in legal clinic offered by the University of Seattle (many post-secondary institutions offer these at no cost), where a legal professional helped review a contract and propose safer indemnity clause language. “I remember more or less understanding what the clause as written meant, but I didn’t know how to change it without making myself sound like a total legal noob,” she says.

Treat your work like a business. Yan points to the ways that media work is often constructed as a personal artistic endeavor, rather than a business transaction, as a precondition for publications to take advantage of freelancers. “I think we’re just baited by a lot of things in this industry,” Yan says. “As a freelancer, you are a small business. Negotiating contracts is just business as the end of the day. This is part of the game. It has to be done, otherwise we’re gonna be stuck with really shitty contracts everywhere.”

Don’t let a generous rate distract from contract terms. Many writers are understandably hustling to secure a coveted rate of $1-per-word or more, but Yan says that contract terms are just as important as a solid rate. “A lot of freelancers find that [rate] really elusive, and want to get to that level, so that’s the bait, and then the switch is kind of everything else that’s in the contract,” she says. Well-paying Medium publications might offer a competitive rate for an assignment, but their contract takes all rights to the work and raw materials throughout the world in perpetuity. If the story produced by your labor is optioned for TV, film, or other projects, Medium controls it and the resultant profits.

Think through the terms from different angles—even ones that seem fair. Even common contractual terms that appear fair, like payment upon publication, can work to a freelancer’s disadvantage. Yan explains that since freelancers have relatively little input on when their piece is published, it can be left to an overworked editor with a demanding publishing schedule, and pieces can fall through the cracks for weeks and months. “They’ll say, ‘We’re all booked up for the next two weeks,’ but that shouldn’t be on the writer,” says Yan.

2. Terms to Watch Out For

Contracts full of dense legalese can be hard to decipher, let alone negotiate. Maryland-based lawyer Lauren Agresti says it’s critical to catch issues before the contract is signed. “A lot of problems in a contract are what’s not there,” says Agresti. “If everything’s not spelled out clearly, that’s when you get scope creep, 800 rounds of revisions, four different points of contact.” These all result in extra unpaid labor for freelancers.

Here are a few potentially problematic terms and scenarios to watch for.

Email Contracts
Agresti notes that while emails between an editor and freelancer are often legally binding, these usually don’t include the terms and protections that a fair contract would outline. “If it’s someone you’ve worked with before and you trust, you might hesitate a little less,” she says. “But the problem becomes that you don’t have the things that you need to do your job most effectively, and get paid on a timeline that works for you laid out. The fullest way to protect yourself is always to have a written contract.”

Permalancing
Agresti especially cautions against “anything that looks like traditional employment on a freelance contract.” These types of contracts are used for permalance work, a term that describes ongoing labor for a business without any benefits or protections. “You have regular responsibilities, unlimited scope, you’re reporting to someone, [and] in a lot of cases that’s not necessarily compliant with employment law, but it’s difficult to enforce,” says Agresti, citing a recent National Labor Relations Board decision to allow employers to misclassify employees as independent contractors.

Restrictive Covenants
Some contracts include non-compete clauses and non-disclosure agreements.Vox, for example, included terms which would prohibit freelancers from discussing their pay. They quickly removed the clause following organizing and collective action from media workers, including Study Hallers Cat Ferguson, Cinnamon Janzer, and Daisy Alioto. “[Those terms] put you in a position where you’re more beholden to or limited by someone than you really would want to be as a freelancer,” says Agresti. “It’s specifically seen more in employment agreements, but those provisions are starting to encroach into freelance work.”

3. Why It’s Important to Always Negotiate

Amy Lehman works with New York City non-profit Volunteer Lawyers for the Arts, offering legal services, advice, and educational programs to low-income artists who can’t afford to hire attorneys. Lehman points to recent local legislation like the Freelance Isn’t Free Act as an example of material means with which freelancers can hold employers accountable, but notes that education around that law and freelance work in general need to be more inclusive and accessible. “[Freelancers might] get great training in their art, they’re going to school and getting professional training in great ways, but they don’t get any business skills,” says Lehman. “If that was part of their training, they would be more empowered when they went out there. [The Freelance Isn’t Free Act] certainly gives people more power but only if they’re willing to take the chance that they might not get a job because they’ve stood up for themselves.”

If you are in a position of institutional power, negotiate to help others who aren’t. Empowerment in negotiations is also relative to institutional positioning. “People who are at a higher level in their field, when they’ve climbed that ladder and have recognition, they have the clout to negotiate,” says Lehman. “[Hopefully] they’re willing to say, ‘I understand that I have a position of power and I can negotiate my own deal, but this is something that should apply to everyone.’ It’s not just admirable, but it’s actually necessary.”

There’s no harm in asking. For freelancers developing their negotiation skills, Lehman highlights the importance of the ask. “If somebody offers you $200 for your piece, you can always ask for more,” she says. “The difficult thing is to say, ‘I won’t do it.’ It’s easier to say, ‘Well at least I get some exposure, I’ll do it for less.’ You’re lowering your value and you’re making it easier for them to not offer you your value next time. The only way to raise your rate is to ask.”

Yan offers similar advice. “As a freelancer, you are a small business,” she says. “Negotiating contracts is just business. If you do it professionally, and leave emotion at the door, I think that’s going to be taken really well. It’s not a contentious thing, and a good editor should really realize that if they want to work with freelancers, this is part of the game.”

Your negotiating could permanently change a publication’s freelance contracts. Yan’s negotiations have benefited other freelancers, too. In two instances, her clients permanently modified the indemnity clause in their work-for-hire contracts because of the language she proposed. Yan’s successes are instructive on a personal level, but they also suggest that better work conditions are attainable for all freelance media workers.

“I deeply believe that if enough freelancers pushed back on terms, contracts would not be bad when they arrive in my inbox,” she says. “We’re being asked to sign work-for-hire contracts all the time that are pretty bad, and I wonder how things would work if the tables were turned: if instead, it was us sending the publication a contract saying, ‘These are the terms under which we’ll write for you.’”

An Example of How Intellectual Property and Copyright Clauses Can Screw You

Here’s a section on intellectual property rights and copyright from a major media company’s freelance contract, followed by analysis from Agresti:

The Work and the results and proceeds of your services hereunder and all materials prepared in connection therewith (collectively, the “Materials”) shall, automatically and irrevocably upon their creation, be and remain the sole and exclusive property of [publication] as works made for hire under the United States copyright law… [Publication] shall be the sole and exclusive owner of all copyrights and other rights, title and interest in and to the Materials, and shall have the sole and exclusive right to use and re-use, and authorize others to use and to re-use, the Materials in any and all media … throughout the universe, in perpetuity, and without further compensation to anyone … Additionally, [publication] shall have the right to adapt, crop, enhance, change, edit, add to, delete from, and otherwise revise, the Materials, and you hereby waive any “droit moral” or moral rights of the author with respect to the Materials and [publication] may publish and/or reproduce the Work in its original form or in a condensed, adapted, abridged or revised version … Additionally, [publication] shall have the right to adapt, crop, enhance, change, edit, add to, delete from, and otherwise revise, the Materials, and you hereby waive any “droit moral” or moral rights of the author with respect to the Materials and [publication] may publish and/or reproduce the Work in its original form or in a condensed, adapted, abridged or revised version.

Study Hall: Can you break down these rights terms?

Lauren Agresti: If I had to distill it, what this is saying is that the work you produce, all your drafts, any content contained within the work/your drafts, and (arguably*) anything you write to promote the work (e.g., social media copy, etc.) no longer belongs to you in any way. This is different than granting a license. When you grant someone a creative license, you still own the work, but the licensee is paying you for it. It’s often a subtle difference in practice (if we’re talking about many exclusive, sublicensable, irrevocable licenses), but in theory, the two are different. Remember that work is intellectual property.

In other words, per these terms, you are producing intellectual property in which you will have no ownership interest. You will have no say in how that property is used, modified, sold, or shared. You will have no right to compensation for derivative works or adaptations. You will (arguably*) have no ownership interest in any component of the intellectual property either (e.g., characters you develop, stories you tell). You may or may not be credited upon publication or sale, depending on the rest of the terms. You will have no moral rights.

Moral rights are rights you are considered to have inherently or automatically as the creator of a work. Not every jurisdiction acknowledges that these rights exist, or acknowledges their existence to the same extent. Not every jurisdiction allows you to waive these rights.

Moral rights can be grouped into two sub-groups of rights: 1) attribution (or non-attribution) and 2) integrity of the work. So, if you are in a jurisdiction that fully recognizes the moral rights of creators and you have not waived those rights, in theory, you have the right to be credited (or not credited, or credited with a pseudonym) every time a work is published. You also have the right to the integrity of the work, which means that you have the right to object to any modification of the work that would harm your reputation or detract from your relationship with the work. In other words, you maintain a say in what happens to the work. The important thing to note here is that unless you have waived moral rights, you are considered to have them (in jurisdictions that recognize them) even if you no longer own the copyright or property interest in the work.

For reference, many jurisdictions in Europe recognize moral rights to a fuller extent than the law does in the United States. There is a (relatively anemic) tradition of moral rights in the U.S., but they are less relevant here. You’ll notice that these terms specify that the copyright laws of the United States apply. Generally, that is favorable to the publication.

*Note: I say arguably because contract interpretation is anything but black and white. It all depends upon the fact finder (judge, jury, etc.) doing the interpreting, which can differ in theory (based on common law/the laws of your jurisdiction), and in practice (based on the “lens” of the fact finder).

SH: Is it ill-advised for freelancers to give up these rights?

LA: It’s not “bad” to give up these rights. Not at all. Your work is (for better or worse) a commodity with economic value, as are your rights as attached to that work. The “problem” is that if you don’t fully understand the rights you are selling in connection with your work, you may not be pricing correctly. Or, you may be selling work or associated rights that you did not intend to sell.

For example, you may be selling a written story for publication in a well-read magazine. In exchange, you think, you will be compensated with money AND with accurate attribution every time your story or part of your story is published or used. But here, you’ve waived your moral rights (and, if you are in certain jurisdictions, you may not have had them in the first place after selling the property interest in your work). In reality, you may not have any right of attribution at all (of course, you’d have to look at the rest of the contract). Is the work worth the money you’re being paid if you have no guarantee of associated attribution? Only you and the buyer can decide, but these are things that are helpful to understand when naming your price or signing a contract.

SH: What sorts of terms could freelancers propose here that would be more fair?

LA: There is no universal standard of what is fair (at least, not in my opinion). We can make normative judgments about whether or not these transactions should be purely economic, but the fact of the matter is that they mostly are. The key is understanding the full scope of what you’re selling so that you can negotiate with complete information.

For example, you may be selling a photograph. Perhaps it is important to you that the photograph not be modified because the integrity of the photograph has reputational value to you as a photographer. In that case, you may want to ask that the portions of the terms about the right to modify the work be stricken, and ask that the terms explicitly grant you a right to the photograph’s integrity regardless of who owns the copyright interest in the photograph.

Another example: you may be writing a story for a major publication. You may have been quoted a rate that is less than you usually accept, but you assume the byline will make the job worth your time. You may want to ask that the terms explicitly grant you a right of attribution each time the story or a portion of the story is published.

Another example: you may be writing a story that may turn into a book or film. You would a) like the right to create that book or film yourself and/or b) you would like to be credited and/or paid royalties if that book or film materializes, whether or not you create the book or film. Then, it might be appropriate to include specific carve-outs in the terms to that effect OR perhaps a licensing agreement for the story may be more appropriate than a work-for-hire agreement.

I wish it was as simple as “here are better terms that work for everyone,” but that’s not the case and it would be irresponsible of me to tell you that it was the case. My best blanket advice is look for the things that matter to you: attribution, integrity of your work, rights regarding derivative works, compensation, and ownership of the sub-components of your work are some things to think about.

The bargaining power aspect of these arrangements certainly present a difficulty, as does the cost of legal representation. Your best bet is usually to say “I have xx concerns about this contract, could we modify xx portion or include a carve-out?”

Most of the time these contracts have been drafted to be unnecessarily favorable to the publisher because 1) their lawyers have a duty of zealous representation to them, and 2) it is easier and cheaper to have one broad, very favorable form contract in-house than it is to have a full range of contracts for different situations. That means if you want something custom, you will have to ask. As a general rule, pick your battles, but be aware of what’s most important to you and guard your most valuable work.

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