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From the Periodical Writers Association of Canada Agreements for Freelancers By Keith E. Risler
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is; kill fee if article goes unpublished; article fee; fee for pictures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. 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.
Published in Sources, Number 44, Summer 1999.
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