In my forthcoming workshop on content marketing writing, I’m covering contracts in some detail because a bad contract can break you. Now, I want to emphasize I’m not a lawyer. I suggest you consult an actual attorney for any contract questions or issues that trouble you.
That said, I have read a few contracts in my time, and I have learned to scrutinize them with a jaundiced eye.
Recently I received one of the worst contracts I’ve ever been offered, and I thought I’d share it here as an example of how to review a contract for clauses detrimental to your business.
Never Trust the Client’s Contract
Although I’m an inherently optimistic person who wants to believe all people operate from the best of motivations, I’m enough of a realist to know that nobody has my best interests more at heart than I do, myself. So that is my first advice to you, as a writer: Never trust a client to offer you a contract that favors your interests over theirs.
Any client is going to structure a contract so it benefits them the most. If you were constructing a contract, you would do the same thing. That’s the nature of business.
This is why the first thing you should do when offered a contract is take some time to sit down and truly focus on reading through it and marking it up (literally or figuratively speaking). By identifying unfavorable clauses, you can avoid signing a document that could literally bankrupt you under certain circumstances.
Example of a Horrible Payment Clause
Normally when I’m railing about bad contracts, I’m talking about indemnification clauses. These clauses ask you – a solo freelancer – to indemnify (be financially responsible for) any lawsuits filed against the client that relate to your work. It’s patently absurd that mega-corporations demand this of writers, and I always push back against those clauses.
But this time I’m actually railing about a ridiculously bad payment clause that I am now publicly holding up as an example of something you should never sign. Or, at least understand what you’re agreeing to if you do sign something like this.
Here is the clause in question, with the client name redacted for obvious reasons:
On a case-by-case basis, [redacted] and Contributor will agree upon the fee that will be paid to Contributor for publication of the applicable Article (in each instance, the “Fee”).
(i) In the event the Article is published by [redacted] within 12 months of Contributor’s submission thereof, [redacted] shall notify Contributor of such publication, at which time Contributor shall provide [redacted] with a written invoice for the amount of the applicable Fee. [redacted] shall pay such invoice within 45 days of receipt.
(ii) In the event that Contributor provides [redacted] with a complete draft of the Article that complies with the criteria of the Assignment, but (A) [redacted] does not publish the Article within 12 months of Contributor’s submission of thereof, or (B) prior to the expiration of such 12-month period, [redacted] provides Contributor with written notice of [redacted] content marketing staff’s decision to “kill” the Article, then [redacted] agrees to pay Contributor an amount equal to 25% of the applicable Fee. Upon expiration of such 12-month period or Contributor’s receipt of written notice under Section 2(a)(ii)(B), Contributor shall provide [redacted] with a written invoice for an amount equal to 25% of the applicable Fee. [redacted] shall pay such invoice within 45 days of receipt.
Let’s go over all the problems with this, from a writer’s standpoint.
1. Pay on Publication
This clause states the writer may not invoice the publisher until the publisher notifies the writer that the article has been published – which may take up to 12 months to happen. This is absolutely absurd. In other words, you will put in all the hours of work required to create the article, but then the publisher can sit on it for up to a year – and you can’t bill for the time you’ve invested.
2. Kill Fee
Personally, I am 100% anti-kill fee. A “kill fee” is a token amount a publisher pays a writer for producing an article that never gets published. In this case, the publisher apparently can kill articles on a whim – and then only reimburse the writer 25% of the original fee. Again, this is absurd. If you perform in accordance with the assignment details and submit an article suitable for publication, you should be paid in full for it, period. The only circumstance that would maybe justify paying a kill fee is if the writer submits an article that is unpublishable because it doesn’t meet the specifications of the assignment brief. But I would never agree to a contract that allows a publisher to simply kill articles on a whim.
3. 45-Day Payment Terms
This is unfortunately becoming much more common in the industry, and I urge all writers to push back hard against it. Otherwise, we’re going to end up with 45 days becoming the payment standard, just as onerous indemnification clauses have become standard. I always seek 30-day payment terms. Furthermore, I often state in my own contracts that I invoice “on submission” or “within 14 days of submission.” Give. Me. My. Money.
I hope sharing this example helps you understand WHY you need to carefully read over contracts before signing them and also the types of freelance writing contract clauses to push back on (or reject outright – as I did with this one).
Contract questions? Post ‘em in the comments!
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