written by Maya Smart
Whew! Landing that new client was a boon to your bottom line. However, now the editor is asking you to sign a freelance contract that’s packed with legal terms you’ve never seen before (or haven’t paid much attention to). To help you protect your business, we put together this short list of terms that every writer should know.
First North American serial rights
Magazines and newspapers often ask writers for the first North American serial rights. By agreeing to this, you’re promising first dibs on your story in the U.S. and Canada. Many publications (a.k.a. “serials”) now say these rights include their websites, too. In other words, they won’t pay you extra for putting your print story online, in the digital version of their periodical. Even so, with FNASR, you retain the copyright.
“It’s equally important to know what you’re not selling,” notes Moira Allen, editor of Writing-World.com. “You are not, for example, licensing a publisher to reprint your work in another format, such as an anthology. The publisher may not distribute the work outside North America; that would require a transfer of ‘international rights.’ …FNASR is an ‘exclusive’ right, which means you can’t transfer it more than once or to more than one publication.”
Electronic publishers often use the broad term “first rights,” without specifying how or where your work may be published. Before agreeing to this, consider whether you may want to pitch or sell the same article elsewhere. If so, request more specific language in your contract, such as “first electronic rights.”
Beware of this blanket term, which is often used by publishers who don’t want to buy additional rights (reprint, anthology, archival, etc.) later on. Once you’ve sold “all rights” to your article, you may never resell it—but the publisher can, without sharing the proceeds.
“All rights is usually a bad deal for writers,” advises author Marcia Yudkin, who specializes in creative marketing. “It means you sell the magazine the right to publish the article as many times as they like, to resell or to license the rights to a movie or computer database or audio publisher without paying you another dime, ever. If you’re asked to sell all rights, try to negotiate something better.”
That “something better” could be first rights of the type you specify or perhaps “exclusive rights” for a limited period of time, such as 60 days after submission or publication. That essentially means you reserve the right to resell the piece after the agreed upon period ends.
Work (made) for hire
This is like “all rights,” except that you’re giving up any claim to copyright. Most work for hire is done by full-time staffers — as in, the company owns all of what they produce — but some publications want freelancers to agree to this, too. If you do, you are allowing the publisher to use your work however they see fit, including under someone else’s byline. You can’t safely reuse the reporting you did, either, because any similar material you use could “infringe” upon the copyright, which you no longer own!
“In most cases, work-made-for-hire and all-rights contracts are a rotten deal for writers. If publishers want additional rights beyond first print rights—exclusive or non-exclusive — they should pay for them,” says the American Society of Journalists and Authors in a position paper on the topic. “In only a very few situations do we acknowledge that such arrangements may be acceptable: a book ‘written to order’ as a promotional vehicle for a company and/or its products, for example … or certain kinds of corporate writing.”
In some cases, such as when you foresee no real potential reusing or reselling the material, this may be fine. Think: technical and users’ manuals, corporate press releases, or marketing materials. But, in general, avoid “work for hire” contracts whenever possible.
Payment on delivery, acceptance or publication
Beyond your rights, make sure any contract includes terms of payment. “Payment on delivery” means that your fee is due as soon as you turn in your story (and an invoice, if requested). “Payment on acceptance” is pretty much the same thing, unless you’re submitting an article that wasn’t commissioned: You’re sending in original work so an editor may review it, at which time they may or may not decide to use it. “Payment on publication” means that your invoice won’t get processed until after your story is published.
Laurie Pawlik-Kienlen, who writes a “Quips and Tips” column for her blog, The Adventurous Writer, recommends establishing a deadline for “payment on publication” offers. “If you agree to accept the editor’s payment on publication offer, ask for a light at the end of the tunnel. For instance: ‘Payable upon publication or six months from date of acceptance, whichever is sooner.’ That way, you’re not sitting around for years, waiting for the editor or publisher to pay you for your writing.”
Last, but not least, you’ll want your contract to include language that ensures you’ll get paid for assigned work if your story never runs (or “gets killed”), for whatever reason, usually having nothing to do with the writer or the quality of the writing. “Publications die. Editors have a change of heart. Insist that a kill-fee clause is part of any contract you negotiate or sign,” Jeffery D. Zbar advises in Writer’s Digest. “Ask for 50 percent; settle for no less than 30 percent. If the magazine demands to pay less, you may be dealing with a substandard publication—and be inviting trouble.”