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From the Periodical Writers Association of Canada

Agreements for Freelancers

By Keith E. Risler

Writers spend most of their time focused on the process of writing itself, whether it's journalism, news releases, annual reports, or simple research.

This dedication normally yields rewarding assignments that benefit both writer and client. Occasionally, however, despite the best of intentions, problems develop. Thorough documentation of the business relationship is the key both to avoiding problems in the first place, and to resolving issues when they do arise.

Most disputes other than late- or non-payment issues revolve around a foggy understanding of the agreed-upon terms. Problems may include non-payment issues, disputes over what rights are actually being licensed, questions as to whether work was "assigned" or "on spec," or failure to meet article deadlines. From the client's point of view, disputes may also involve the writer failing to deliver what was agreed to in content terms. All of these issues can be addressed by what we in the Periodical Writers Association of Canada (PWAC) refer to as "the paper trail."

Writers must clearly understand the client's requirements, desired terms, and approach to the subject matter. Outline these as finally negotiated in a written agreement or, less ideally, in a "letter of intent" sent to the client after the assignment terms are discussed verbally. A letter of intent should explicitly invite the client to reply if any of the stated information is incorrect in the client's view. If in doubt about any aspect of an article assignment, be sure to clarify your concerns before proceeding with the work.

An agreement or letter of intent should contain, but not necessarily be restricted to, a description of the assignment; rights offered; word length; deadline; allowable expenses; whose idea the story is; kill fee if article goes unpublished; article fee; fee for pictures supplied; payment date; whether payment will be made upon acceptance of the article or upon publication; and the probable publication date. It should also specify copyright licensing terms, such as "One-time serial rights in print in English only. Licence to publish commences on receipt of payment. If the article is not published within 12 months of acceptance, all rights licenced revert to the writer without penalty or cost. All other rights reserved by the author." Note that the article is self-syndicating and that electronic and database rights are not being licensed, unless of course this is what you are selling.

A copyright statement should be applied to all submitted manuscripts, stating "Copyright © Year Name," as in Copyright © 1999 Keith E. Risler (if all rights are not being sold) and include the license terms as stated on the invoice as well.

Writers who are asked to sign a client's pre-written contract should understand that contracts are inherently negotiable. There is occasionally flexibility in "non-negotiable" agreements, which you'll discover only by testing the negotiating waters. An excellent resource in learning effective negotiation skills is the book Getting to Yes: Negotiating Agreement Without Giving In, by Roger Fisher and William Ury of the Harvard Negotiation Project (Penguin Books). Getting to Yes is suitable for both writers and buyers of writers' services, because it stresses mutually beneficial negotiation approaches.

When presented with a contract that requests more than first publication rights, writers should consult an experienced law firm specializing in copyright issues. Copyright is a highly complex area of Canadian law that lay persons should never tackle on their own. Two good introductions to copyright are the books Canadian Copyright Law and Digital Property: Currency of the 21st Century by copyright expert Lesley Ellen Harris, both published by McGraw-Hill Ryerson in Canada. These books explain copyright in detail, and cover key copyright licensing issues.

Writers should keep copies of all memos, faxes, letters, and other written communications. Make careful notes on all deviations from the original outline, and confirm all changes in a letter to the client, so that there are no surprises upon delivery. Writers should keep all research notes and interview tapes; both are good protection for writer, interviewees and the publisher in content-related disputes.

Interview tapes and all notes should be retained indefinitely, not simply for the minimum period required for business records in any specific jurisdiction. In the Internet age, content is often "repurposed," raising the possibility of libel and other issues long after articles are originally written. Retaining all records permanently helps to protect against such eventualities.

Writers must meet their deadlines and the agreed-to terms. When the writer is unable to meet a deadline, the client should be notified in advance. Writers should file expense accounts within two weeks and include an invoice with the article when it is delivered. If long-distance or other expense-related charges are to follow, note this on the initial invoice.

Our experience in PWAC's Mediation program has been that if the business relationship is documented by either a written agreement or a solid paper trail, including a thorough letter of intent, the basis for effective dispute resolution will be very solid.

Late or unpaid accounts are best addressed by prompt initial invoicing and regular re-invoicing. Most of the time, documentation in hand, payment will be forthcoming. Other issues can be handled as the writer or publisher chooses, but the most effective first step is for the parties to try to resolve their issues on their own, relying on their paper trail as a guide.

Failing that, an evolving option is Alternative Dispute Resolution (ADR), such as that offered by PWAC. ADR is also available from independent mediators. PWAC offers a no-fee mediation program to its members and to publications that agree to use the PWAC Standard Freelance Publication Agreement. However, court-supervised mediation is becoming increasingly popular with Canadian law courts prior to trials, and may be legislated as mandatory for all Ontario court cases relatively soon.

Other writers' organizations maintain grievance committees that work to resolve their members' disputes with publishers, providing additional options before choosing the court option. Their structure and options tend to vary, however. At the end of most money-related disputes lies small claims court, due to the fact that a single article fee is usually low enough for such courts. Here too, writers may find the paper trail useful in documenting any claim (and vice versa for the client in such cases).

No article such as this one can be considered to constitute legal advice. It is always smart to consult with a law firm on agreement terms under which you plan to do business, to ensure that all relevant issues are addressed with respect to your own situation.

Keith E. Risler
Keith E. Risler was 1994-1998 Chair of the Periodical Writers Association of Canada (PWAC) National Mediation Committee
For more information about the Periodical Writers Association of Canada see their listing in Sources.

Published in Sources, Number 44, Summer 1999.

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