Do you start wincing with anxiety when it comes to contracts for your freelance writing jobs? Or are you unsure about all that legalese from big-time lawyers at ginormous companies that sounds like you’ll be roasted over hot coals if you put a comma in the wrong place?
Getting sweaty palms over freelance writing contracts is one of the biggest struggles I see writers have; from newbies all the way up to seasoned content marketers. But drilling down and understanding what these complex clauses mean, why they’re becoming more frequent in our contracts and what steps to take if your potential client pushes back on your changes can give you a lot of confidence when it comes to signing on the bottom line.
Over the last decade or so, I’ve seen simple, one-page contracts morph into pages-long, detailed documents with new clauses, explanations, loopholes and confusing verbiage. Yet, it doesn’t have to be that way and there’s plenty that freelance writers and contractors can do to achieve writer-friendly contracts.
7 crucial freelance writing contract clauses you should understand
Here are a few crucial freelance writing contract clauses to know right now, and steps on how to get agreements that work best for your business and your client.
1. Scope of work
What it is: This outlines what the project details are including the type of content you’re writing, the word count, agreed upon deadlines and your revision policy.
Why you need to know this now: It seems simple enough, but sometimes clients change your scope of work before they sign the contract without telling you; making the project bigger than what you originally quoted or agreed to. Double check for changes to your scope of work, and if it grew, note the change with your potential client and charge accordingly.
What to do if the client pushes back: If your potential client doesn’t like the increased fee, discuss whether or not it makes sense to go back to the original scope of work, explain why the fee increased, or see if there’s an alternate route of a second project to break up the cost. Also, make sure to include this sentence in all your future contracts: “Changes to this scope of work will lead to additional fees.”
2. Rights (Businesses, magazines and work for hire)
What it is: This section describes who owns the content copyright, whether that’s a business, publication, larger entity or you.
Why you need to know this now: Recently, I’ve seen contracts from potential clients get much more rights-grabby, with a large uptick in Work For Hire agreements. Especially with the changes in technology, many companies are trying to hold onto not only current rights to all platforms and tech, but future rights in case a new form of media comes along that they want to take advantage of and promote the content you created there. But rights differ between writing for businesses and magazines.
For me, that means this is the clause I use with corporate clients:
“Until completion of the scope of work, Freelancer retains all copyrights of works developed in whole or in part by Freelancer in connection with the scope of work described in this agreement. Upon payment, the copyright will be transferred to Client and will be the exclusive property of Client. Client grants Freelancer the right to display the finished product in her portfolio and on her website.”
And this is my clause for magazines:
“Until completion of the scope of work, Freelancer retains all copyrights of works developed in whole or in part by Freelancer in connection with the scope of work described in this agreement. Upon payment, Client receives First North American Serial Rights plus a 30-day exclusivity publishing period. Client grants Freelancer the right to display finished articles in her portfolio and on her website.”
With businesses, you’ll transfer all rights to them since re-printing their content is a nonexistent revenue stream for freelance writers. The key here is that they don’t own the rights until they’ve paid for the work. They don’t pay, you own the rights and can use that if you have to take action.
With magazines, we’re walking a different rights rope. Usually, you’ll get emailed an all-rights contract (AKA Work For Hire) where you’ll submit your finished piece and transfer all current and future copyright to that publication. When you sign a Work For Hire Agreement, you’re agreeing to create the content, give up claim to it when you turn it in, and have the copyright owned wholly by your client who paid you for the work.
This isn’t your only option, though, since with magazine articles there’s still a chance you can re-sell the article to another publication and get paid again… if you retain the rights.
Ask if they have another contract with more writer-friendly terms, if it’s possible to get First North American Serial Rights (FNASR), or if you can change the rights clause to an exclusivity period of 30, 60, or 90 days. That way, you can still retain the rights, but they’re able to run the first print of the story and be first to market.
What to do if the client pushes back: Don’t panic! Pushback on rights is totally normal, especially for publications (P.S. big magazines often have several different contract templates so don’t be worried about asking for their other contract). And it’s not the end of the world to sign a Work For Hire contract; it’s pretty common nowadays.
With so much content being created, I’ve noticed the re-sell magazine market is low so it can make sense to sign the rights away. What you want to pay attention to is if your article has the potential to re-sell well. If so, try your best to secure FNASR, an exclusivity period, or more writer-friendly terms than your client getting all rights now and forever for everything currently and potentially created.
For businesses, much of the issue is making the work publicly available on your website or portfolio. Ask if you can send the sample out to show your work to potential clients as long as you don’t publish it on your website; most of the time, they say yes.
3. Indemnification and dispute resolution
What it is: The indemnification clause outlines who’s responsible for legal fees and expenses in the event that someone sues the business or publication over your content, interviewee quotes or media project. And dispute resolution explains how you and your client will solve any issues (disputes).
Why you need to know this now: More contracts that have popped into my inbox recently have come with stricter indemnification clauses. The super complex language involved means you need to know how to protect your assets from legal harm, and ensure you know what it means when you sign a contract with this type of clause. If you indemnify your client, you’re on the hook for anything legal that pops up about your work. But with mutual indemnification and verbiage that explains you’ll work together on any complaints, everyone is playing together against any legal situation.
For me, I use mutual indemnification in this clause:
“Any legal action or proceeding relating to this agreement shall be brought exclusively to relevant courts and each party consents to the jurisdiction thereof. The prevailing party in any litigation related to this agreement shall be entitled to an award of its attorney’s fees and costs. In the event any complaint or claim relating to the copy is made by any third party at any time, Client shall fully indemnify Freelancer and hold Freelancer harmless with regard to all costs, expenses, damage and losses (including reasonable attorney’s fees) arising from that complaint or claim, and will fully cooperate with Freelancer in responding to and defending against such complaint or claim. Additionally, Freelancer shall fully indemnify Client and hold Client harmless with regard to all costs, expenses, damage and losses (including reasonable attorney’s fees) arising from that complaint or claim, and will fully cooperate with Client in responding to and defending against such complaint or claim.”
For dispute resolution, I like this one:
“The parties will attempt to resolve any dispute out of or relating to this Agreement through friendly negotiations amongst the Parties. If the matter is not resolved by negotiation, the parties will resolve the dispute using the below Alternative Dispute Resolution (ADR) procedure. Any controversies or disputes arising out of or relating to this Agreement will be submitted to mediation in accordance with any statutory rules of mediation. If mediation is not successful in resolving the entire dispute or is unavailable, any outstanding issues will be submitted to final and binding arbitration under the rules of the American Arbitration Association. The arbitrator’s award will be final, and judgment may be entered upon it by any court having proper jurisdiction. This Agreement shall be governed by, and construed in accordance with, the laws of the State of THE STATE YOU LIVE IN.”
What to do if the client pushes back: Your first step is to ask your potential client to remove the indemnification clause, but if you get a no, submit the mutual indemnification clause above (legal departments are usually onboard with this option). If the client wants to keep the original indemnification or dispute resolution clauses, you’ll have to decide whether or not you want to work with them. Typically, if it’s a dream client you really want to work with, and you have business insurance or created an LLC, you have some legal protection and it may be ok to sign.
4. Payment terms
What it is: This maps out how and when you get paid, your freelance writing rates, if you give refunds, if you get a kill fee, circumstances for late or rush fees, agreement termination and how that works with payment and length of contract.
Why you need to know this now: Over my years of freelancing, I’ve had payment terms from pay on publication (months and months after submitting the work) to a 48-hour turnaround. It varies a lot, and especially with COVID, I’ve seen clients rolling out longer payment terms.
I like NET 14 (getting paid 14 days after submitting my invoice). But many businesses align freelance writer terms with how they pay other contractors (anywhere from NET 30 to NET 90 or longer), and publications can have wonderful NET terms, or pay on publication terms, which means you don’t get paid until the piece goes live or is printed. You also want to make sure that additional fees, refunds or termination are covered as well.
For business clients, I use this clause:
“Changes to this scope of work will lead to additional fees, and changes to deadlines with less than a 7-day turnaround may incur up to a 50 percent rush fee. Client agrees to pay Freelancer the amount of USD $XXX for writing services provided. Virtual or phone meetings beyond 1, 60-minute meeting, or 2, 30-minute meetings are billed at $XXX per hour. Payment will be invoiced via MY PAYMENT PLATFORM and made via ACH (direct deposit), company check or Stripe. Payment terms are NET 14 DAYS. Overdue payments will accrue 2 percent monthly interest, and no refunds are given. In the case of early termination of this contract, Client and Freelancer agree to give 15 days notice of termination, and Client agrees to pay Freelancer in full for work completed.”
For magazines, I typically take their payment terms unless the publication isn’t planning on running the piece any time within the next six or so months. Pay on publication can be quite lengthy, but if you get NET 30 or NET 45, you’re in good shape.
What to do if the client pushes back: If your business client has super long contractor payment terms, you can always ask if they’ll make an adjustment to your contract, but if they say no, you’ll have to weigh whether or not you can wait that long for payment.
Publications are more cut-and-dry. You can ask about pay on submission terms, or changing the NET terms, or payment date, but usually their details are set. However, you can always ask if there’s any wiggle room in their budget to up the rate (which may make it easier to handle longer payment terms), or see if you can get paid quicker through ACH (direct deposit) rather than a mailed check.
What it is: Non-compete clauses explain that you’re not able to work for your client’s competitors. Any business or publication they consider competition is now, essentially, outlawed from your client list.
Why you need to know this now: Due to the fact that these clauses (just like rights) have been creeping into more contracts, it’s critical to know how to deal with them; see this helpful presentation from the FTC about restraint of trade and antitrust laws.
Because they restrain the freelance writer’s ability to grow their business, and therefore make more money, they’re technically illegal in this context as restraint of trade. And usually, these clauses end up in those one-size-fits-all buckets that larger companies send to all contractors of all professions. But, you don’t have to keep these in your contract no matter how often you see them; you can ask the company or magazine to remove it.
It may look like this:
“Contributor will not, until 30 days after publication of the issue in which the work first appears, write or publish, or cooperate in the publication of in any form, an article or other communication or submit to an interview on the same or similar subject as the work unless Contributor has received writer consent by Client.”
“Contributor will not, until the applicable exclusivity period herein expires, write or publish in any form, an article or other communication on the same or similar subject as the work unless Contributor has received written consent by Client.”
“Author promises and agrees to not author or assist with the authoring of any works on the same subject matter as the Assignment for publication in print, online or any form of media for one year from the Publisher’s first publication of the Assignment without written consent of the Publisher.”
Or even this:
“Contractor acknowledges that they are expected to read, understand and adhere to the Contractor Code of Conduct. Below includes a list of potential conflicts or possible violations of the Code that Contractor is aware of at this time. I understand that at any time, when I become aware of a conflict or potential violation of this Code, I will inform Client immediately for a resolution.”
What to do if the client pushes back: If your client won’t remove the non-compete completely, and you really want to work with them, ask them to list their top three competitors and you can agree not to work with those companies. If that doesn’t work for them, or you don’t want to have any non-competes in your contract, walk away. You also have the option of noting FTC regulations that restraint of trade is illegal and see if they’ll remove the clause then.
6. NDAs and confidentiality
What it is: NDAs (Non-Disclosure Agreements) or Confidentiality clauses are included to form a legally-binding confidential relationship between you and your client. When you sign a contract with this clause, you’re agreeing that any sensitive information, trade secrets or intellectual property (IP) will not be shared with anyone else.
Why you need to know this now: Are you a freelance writer who often works with tech companies, start-ups with creative solutions or giant companies with specific, in house-only processes? These companies may want you to sign an NDA to ensure their proprietary solutions aren’t sent over to their competition. With more emerging tech and cutting-edge innovations, you may see these clauses grow, and it’s important to know your options.
No, you don’t have to sign an NDA that lasts forever, or even five or 10 years. Try for one year, or potentially two, and see if your client will work with that; it’s always worth it to go for the least amount of time possible.
What to do if the client pushes back: Most times, as long as the NDA is within a reasonable amount of time, say one year, I sign it. If the client has a longer period of several years, or even forever, I ask if we can shorten the timespan to a year or two. If they won’t budge, it may not be worth it to work with that client or sign a long-term NDA and worry about legal issues down the road.
What it is: When we talk about insurance in contracts, we’re talking about E&O (Errors and Omissions, or Professional Liability) Insurance and General Liability Insurance. Essentially, these policies help protect you if your content runs into legal trouble and gets you or your client sued.
E&O protect you against legal claims of negligence, errors, omissions, misrepresentation, inaccurate advice, libel and slander as well as undelivered services, accusations of negligence and missed deadlines. General Liability protects you or your company from copyright infringement, reputational harm, and injury and property damage claims.
Why you need to know this now: A few years ago, a potential client I totally wanted to work with asked if I had E&O and General Liability Insurance. Nope, I don’t… but I could get it. Since then, I’ve had other contracts of mine, and freelance writer friends, include clauses mentioning these two types of policies.
With plagiarism checkers and the wealth of Internet content, protecting yourself against copyright infringement, reputational harm, defamation, libel or slander, is always a good idea. Plus, if you have insurance and a new client asks, you’re already set to go instead of scrambling like I was trying to get policies secured ASAP.
What to do if the client pushes back: If you’d rather not pay around $1,000 to $2,000 per year for these insurance policies, ask that this clause is removed from your contract. However, to me, it’s better for your business overall to have protection ahead of time so you’re not caught in a bind.
Saying no, red flags and contract negotiations
Any time you run up against a clause that doesn’t work for your freelance writing business, you can always ask for the client to remove it. And, a surprising amount of the time, they’ll work with you on negotiating a fair compromise.
If it turns out the potential client is throwing up red flags, like they treat you like an employee and not a freelancer, the contract has terms that obviously don’t apply to you, or they get upset when you ask for realistic, fair changes, you don’t have to work with that client. No contract is worth losing your business or reputation over.
And if you see too much legalese, offer to send your contract that’s clearer and more concise. I always try to make the terms as easy to understand as possible because this is a partnership where we work with our clients, not for them. Our contracts, then, should be mutually beneficial and as simple as possible, without any fluff.
Don’t lose sleep or stress over contracts. Find the clients who pay you well, treat you like a partner, give you fair terms, and understand why you’re negotiating for writer-friendly terms that work for you.
Photo via fizkes / Shutterstock