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Re: Freelance contract

I don't mean to minimize the problem, but is it really significant for most freelancers?

One question that has to be answered, on a case by case basis, is: What is the real purpose of the change; and who dictated it.

My local paper recently sent me such a contract. Until then, btw, I did my weekly column on a handshake, and had no contract at all. Some of the conditions of the new contract would have been impossible for me to agree to. For instance, I self-syndicate, and they would, in effect, be buying all rights.

So I called my editor. Several things emerged: 1. The contract was chain wide, and sent to them by corporate. 2. The real purpose was so they could post their entire paper on the web. They didn't really care about all that other stuff.

So, we worked out a separate agreement. I granted them non-exlusive electronic rights, and that was the end of it.

Granted this is not the same as a one-time article sale to a major daily (which, btw, is what most of those contracts are geared to---as my editor and I agreed). But you have to ask yourself, what are you really losing by signing it?

Electronic rights? How many of you make a significant part of your income freelancing to web sites? The vast majority of them are no-pay or so low-pay as to make no never mind. So, are you willing to jeapordize a major sale just to make a point?

Some nebulous technology of the future? Gimme a break. Worry about that now, and you might as well get a fulltime job, because you won't make it freelancing.

Examine all the new things they are buying, and then look at how often those other uses come into play. How many times, excluding its webpage, does a newspaper reuse material for any purpose? Again, is this really an issue?

Obviously, every freelancer has to answer these questions for themselves. But before jumping salty, do answer them, and determine if they are really meaningful to you. Is it worth sacrificing a multi-hundred, multi-thousand dollar sale, and your future relationship with that medium, for something that truly doesn't matter?

You have to determine that for yourself; often on a case to case basis.

The one thing you should worry about, IMO, is whether or not those uses are being bought on an exclusive or nonexclusive basis. Taken as a class, these new contracts actually deal with second rights. So, at a minimum, you should assure that they are being bought on a non-exclusive basis, particularly if second rights are a significant part of your income.

Finally, if you blipped over Carlos' last post, go back and reread it. The key part is that new conditions cannot be applied retroactively on a unilateral basis. Both parties must agree. So you are protected there.

New contracts? The basic legal issue is that the essence of contract is choice, and these contracts are presented as a take-it-or-leave-it deal. Whether or not a judge sees it that way is an open question.

But before getting involved with the legal system, try changing what you don't like and see what happens. You might be surprised at what the media really is, or is not, wedded to. Particularly if you discuss it with the editor first. Many times that contract is more negotiable than you think.

One of my students just sold her first book, and was upset at the terms and conditions in the contract. "So change them," I suggested. "Make the changes in pen, and send back both copies."

She reluctantly did so. And all but one of her changes was immediately agreed to.

Successful freelancing often is a matter of examining realities; something we sometimes forget.

I used to ghostwrite a monthly column in a trade magazine, for instance, at $350 a pop---which was good money in those days. I wrote it for 12 years without an increase.

Many of my collegues were appalled by that. "The editor certainly has had pay raises in that time," they'd insist. "You should get one too." One even proclaimed, "I'd be damned if _I_ go 12 years without a pay raise." Of course, the extent of his freelancing was a column in the weekly shopper, so we can discount his voice.

But let me tell you something. From the time I sat down at the keyboard, until I licked the envelope, took me an hour. And the reality is, anybody who was getting paid $350/hour who would rock that boat is a damn fool.

Another area was derived art. Photographers, justifiably, are concerned about that. It's a real issue. However, in the pre-computer days, they worried about it just as hard. And back then, it was not an issue. Reason: The costs of manipulating an image were so high that the purchase price of the original photo was often the least important element. So it was incredibly rare that an image was stolen and used as the basis of something else.

Reality testing: Pre-computer is was not a real issue. Today it is.

I think that some of the furor about the new contracts is a similar situation. If you are really risking something, then sure, make a fuss. But it you're not, just sign the damn thing and get back to work.


Brook
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