Crowdsourcing a freelance contract

More than once, I’ve received an email (or an actual postal delivery) from a publisher informing me unilaterally that in any further work I submit, while I retain copyright, I agree to something along the lines of the following:

“[The Author] grants [The Publisher] the exclusive right to use, publish or deal with the Material, and to license third parties to do the same, including: publication of the material in all their publications’ different present and future forms (and promotion thereof), including but not limited to print, microfilm, Braille, talking book, licensed editions, electronic database, e-paper, website, mobile phone, electronic device or any other facsimile or derivative versions in any medium; subscription syndication services; reprographical reproduction and digital cutting; archival of material; any other act necessary to comply with statutory, regulatory or other obligations and the right to include the Material in any book or other publication…”

In the trade, we call this a copyright grab. In effect, it renders the copyright I retain meaningless, since the client can re-sell my work as they please. Generally, I respond to these letters by politely stating that I do not accept these terms.

The question is, what terms do I operate under? I get offered contracts to sign on occasion, and sometimes I even sign them without objecting if they’re well written. Other times, I simply make an oral agreement. Happily, the people I work for are decent sorts, and there’s never been any hassle, but wouldn’t it make sense if I put in writing my terms and conditions? That way, I’ve stated clearly what can otherwise be a confusion of legalese in the Copyright Acts.

So I had an idea. I’d draw up a contract, and since I generally email my work, I’d put a line in my email signature (sig) linking to the webpage holding my contract, something like “All work supplied subject to the term and conditions at http://link.to.my.contract

Simple, right? Except, sometimes I supply a 200 word brief from a courtroom r a news conference to a daily newspaper. And sometimes, its 500 words. Or 1000 words to a magazine or weekend review. Sometimes it’s a news story, sometimes a profile, sometimes an interview, you get the gist.

All the same, it would be handy if I could come up with a one-size-fits-all contract. I could qualify it with get-out-of-jail clauses, lines next to each item which says “unless otherwise agreed by both parties”, whether it’s a limit on how long I wait before re-selling, or a tweak on the word rate I’m paid (I can hardly expect the Skibbereen Eagle to match the rats offered by the Daily Planet, after all).

So here’s an attempt at a one size fits all contract. And because when I asked Twitter if crowdsourcing a contract was mad, I was told it was this insane, here’s the disclaimer: I am not a lawyer. This is an experiment, but it really is a good idea to get a solicitor to have a look at the final product if you decide to take any of the elements here and use them yourself.

To start with,I had a look for existing templates. There’s the NUJ sample contract for newspapers, for example.

There are other options, including the International Federation of Journalists (IFJ) model contract for journalists, available on the web.

There’s also this sample freelance writer contract from keepyourcopyrights.org which I like, mainly because of its simplicity, although its section on copyright is everything I don’t want.

The contract below comes mostly from the last mentioned tempate above , but since their copyright clause is everything I disagree with, my copyright clause is based on the NUJ sample contract mentioned above.

If you disagree with my choices, well, google is your friend if you want to look further afield.

So let’s have a look at the sample contract, and the tweeks I’d make to it. Bold text indicates additions I’ve made. Strikethrough indicates words from the original which I would omit. Text in italics is used to indicate my own comments on the various clauses.

This agreement is between the Publication (and all its subsidiaries), and the Author, Gerard Cunningham, an independent freelance writer.

Project description:

Author agrees to write a 1,500-word article about dishwashers an article of agreed length on the topic required for the Publication. Author agrees to conduct interviews and research necessary for completion of the article. The article should be written according to AP style. Author will submit the finished article, with a title, any sidebars, and appropriate 4-color photos and captions for each photo, to Editor of Publication, no later than XX/XX/XXXX before an agreed deadline.

Any additional items, such as sidebars, 4-colour photos, captions etc, shall also be supplied by the Author at a rate to be agreed if required.

Payment:

Publication agrees to pay Author U.S. $1,500 EURO €250 per day worked for the complete, finished feature, which includes a headline and accompanying photographs and captions, unless otherwise agreed to the satisfaction of both parties.

Comment: I’m not suggesting you charge €250. Depending on the gig, it may be worth more, or less. In an ideal world, a lot more.

Publication agrees to submit payment for the above-described project within 15 days 30 days unless otherwise agreed after receipt of invoice and publication of the aforementioned editorial project, assuming the editorial project is in accordance with the above project description.

Comment: With magazines in particular, there can be quite a gap between delivery and publication. My attitude is that payment comes due once I complete my work. When I is published is someone else’s problem. Again, depending on other factors (eg software in billing departments setting payment schedules) here may be come flexibility. Maybe cheques go out on the first of the month for example. GEt lucky, and you’re paid within days. A few days later though, and you have to wait a while for payment.

The “kill fee” for work commissioned by the Editor but not published shall be 100% of the fee agreed to supply the work.

Comment: Because my time isn’t suddenly less valuable if you are pressed for space.

Late Payment may incur penalties as outlined in the European Communities (Late Payments in Commercial Transactions Regulations) 2002
See http://www.djei.ie/enterprise/smes/latepay.htm

Comment: I have a habit of quoting this little-known EU regulation in my invoices. It allows me to charge a late payment fee, plus 1.5% interest each month payment is overdue. In ten years as a submissive, I’ve had to invoke it only once. And then, I agreed to waaive the fees once the cheque was promised by return post. Still, it’s nice to know it’s there.

Copyright

Comment: To date, the template been from keepyourcopyright.org. The following section comes from the NUJ template, with amendments.

Copyright and other intellectual property rights in all material created by self-employed freelance contributors belong to the contributor Author and neither the union nor the company the Publisher nor any of its subsidiaries, agencies, associates or any other entity has any authority to assign, waive or license any such rights. The company and the union have made the following statement of policy, which they jointly recommend to all contributors:

Comment: I deleted references to “the union”, because this contract is between me and a publisher. I’ve also changed “the Company” to “the Publisher” for the sake of consistency.

Unless otherwise negotiated, the company Publisher purchases a licence for one use of freelance material only and in one medium and one market only. Unless agreed otherwise, the agreement is for publication in the Republic of Ireland.

The company Publisher agrees to acknowledge freelance contributors’ the Author’s moral rights in their work in all media a) to a credit/byline b) not to be subject to derogatory treatment.

Comment: Because as a freelance, my byline is how I get my next gig.

The company  expects, and the union recommends, that the contributor Author will issue a licence allowing the company Publisher to copy and store the material in its published form solely for library and reference use within the company.

All other licence for further usage, if agreed in writing by the freelance contributor Author, will be purchased at a rate to be agreed by the Author and the Publisher.

Crowdsourcing or insanity?

So there you are. A simple contract which I hope covers most, if not al of the work I do, and which can be simply referenced in my sig every time I submit copy. I’m sure i’ve missed a few obvious points, so any feedback would be appreciated. And is all that bold, italic and strikethrough is confusing, there’s a cleaner version of the freelance contract here.