There was a commotion on Twitter last week. A graphic designer named Juan Luis Garcia claimed he was asked to design some posters for Spike Lee’s new movie, Oldboy. After spending weeks on his designs, he says, the agency that hired him offered an “insultingly low rate” for the use of his posters. He was unable to negotiate a reasonable fee and resigned himself to having wasted his time. Months later, the designer says, he saw his posters being used to promote Oldboy on Facebook.
If you haven’t heard about this controversy, you can read more about it here and here (and read about Spike Lee’s response here). But for freelancers of all kinds, this Twitter storm hopefully served as more than just an afternoon’s distraction. It’s also an unfortunate reminder of the dangers of working without a contract.
When offered a dream job by a high profile client, it can be extremely difficult to turn the subject to money and contracts. But if you can’t bring yourself to tackle these questions upfront, you’ll be in a vulnerable position once you start work.
Keith Maskell, staff rep at the Canadian Media Guild, has spoken on this subject at several freelance seminars over the past few months. Here’s a summary of some of his advice on freelance contracts.
Maskell says that freelance writers should never forget that they’re independent business people. There needs to be clear understanding of expectations between people who are doing business together. When you ask for a contract, says Maskell, you’re behaving like a professional.
You can use a variation on the 5 Ws of journalism to determine what’s needed in a contract.
• WHAT does your client want? What is expected of you? Ask those questions, make sure you understand the answers and then have the details committed to writing.
• WHEN do they need the work submitted?
• HOW is this piece going to get done? Whose equipment are you going to use? If it’s for broadcast, is there an expectation that you’ll cut audio yourself and edit it at home? Can you get technical training or have access to technicians who will help?
• An even more important “how” is “HOW MUCH”? You need to have some idea in your head of what your time and your expertise and your personal brand are worth in this situation for this engagement. The other person will not have these numbers in their head. They’ll have just pulled a number out of their head (or have been told by a superior) so you may need to negotiate.
• Another “how” is HOW are you going to get paid? On delivery? After 30 days? In installments? What’s your recourse? Will you get late fees?
• What do you do if you’re working on an assignment and it gets cancelled? Are you out of luck or have you discussed a KILL FEE?
• The final point in a contract is RIGHTS. This has been the subject of a lot of discussion in the freelance community in the past few months. Here are the rights issues that a good contract should cover:
1. Copyright – the Copyright Act is clear that the creator of a work owns that work. If you have copyright you have the right to resell your work. More importantly, you own all the research and raw tape. You are free to recut and reuse that material.
2. Licensing – this refers to how the engager gets to use the piece of work. Often engagers don’t need copyright, they need a license that’s as unrestricted as possible. From a business point of view it’s easier for them to pay you one fee up front for an unlimited unrestricted license so they can reuse it whenever they want.
3. Moral rights – this refers to your right to have your name associated with a piece of work. It also refers to the right to the integrity of the work – the right to not have your work altered.
And what happens when you’re presented with a standard contract by a publisher? Maskell says that publishers, because they have the power, like to present contracts as though they’re not a choice. However, not all freelancers sign standard contracts in their standard form. Freelancers with clout can insist on changes. But even for less experienced freelancers, Maskell says “nothing ventured, nothing gained.” You always have the option of at least asking questions. If you don’t ask, you’re never going to get anything more.
When someone gives you a boilerplate contract, take a look at it. Get a couple of other people to look at it too. Before you sign the contract, sleep on it. Give it some thought. If you have a friend who’s a lawyer, get them to read it through. The CMG will read through a contract for you, if you’re a member. Maskell encourages freelancers to try to get troublesome spots struck out or changed.
And remember, there is some value to be gained by saying no sometimes. As hard as it is to give up work, you’re gaining self-respect when you refuse to let yourself be undervalued or exploited by a client.
If you’re struggling with a bad contract and need a pep talk on the subject, this recent post on J-Source from writer Ann Douglas should do the trick nicely.
Do you have any questions about the contract issues covered in this post? Leave a comment or email us at editor@thestoryboard.ca.