If you’ve already been in this game for a while, feel free to skip this post. I am not a lawyer (though that was my original career plan back in the day!), just a concerned citizen, so if you are already commanding the rates you deserve and negotiating for contract terms that work in your favor, jump ahead.
But, if you don’t know:
- what you should be charging or how
- what rights you are, can, or should be selling
- that you should try to avoid working without a contract whenever possible
- what publications and companies will try to slip past you if you don’t read carefully
First and Foremost: Know Your Rights
Let’s start with some simple copyright 101.
As I have been taught (I took several courses on freelance rights and taxes before leaving my job, and feverishly consume every new resource on this that I come across):
If you do not have a contract and you write something for a website, magazine, newspaper, or other type of media: they have only purchased one-time, non-exclusive rights to use your article in one type of media (i.e., print but not online or vice versa).
Shockingly, some editors of smaller publications (and especially web magazines and company websites) are not aware of this. This can be used to their advantage or yours depending on how well you keep an eye on your contracts.
The Overlapping Spheres of Print Publication Rights
Once upon a time, writers made great money reselling their already published articles, COMPLETELY VERBATIM to other publications.
Nowadays, the advent of the web, digital apps, Periscope, and who knows what that I haven’t heard of yet, has made publishers start demanding rights to everything under the moon from now until the end of the human race.
But let’s look at the basics.
On a really high level, there are two types of rights:
Exclusive rights mean that no one else can publish the piece of writing or the photo in question. But that doesn’t always mean forever. Exclusive rights come in many flavors.
It’s pretty common for publications to ask for exclusive rights for a set period, say six months or a year, and then only retain non-exclusive rights after that, typically only for the web.
In theory, if a publication is reprinting an article that you wrote somewhere else—an anthology, a sister publication, a Sunday section—they should pay you all over again and have you sign a new contract.
This can be a great way to get unexpected income. I had a cruise magazine, Porthole Cruise, publish an article of mine and then, maybe a year later, I got an email that they wanted to publish the same thing, with no work from me, in another magazine from the same publisher, Cunard, the onboard publication of Cunard Cruise Line. They just sent me a polite email, a new contract, and then a direct deposit with the funds.
Do Not Give Them Your First-born Child—Just a Picture
A quick sidebar on my attempt at a witty headline above: please know that when you post to social media, you are often giving them permission and in fact OWNERSHIP of that image. Don’t post your best photos anywhere except your own website.
Relatedly, when you speak at conferences or even attend many of them, you often agree that the organizing party can use your likeness and any photos of you in their marketing materials, website, etc.
Publications—even and sometimes especially laughably ones that pay little to nothing—have gotten into the habit of automatically asking for exclusive rights in perpetuity (forever) for your article in every media that exists or will exist in the future.
This is ludicrous (unless the rate is extravagant).
Even if you don’t think you’ll ever use the article again, say no to this. (We’ve got some substitution ideas below.) If nothing else, you run the risk of infringing on the publication’s copyright if you ever write about the same destination in the future and that article includes any phrases or sentences like the ones you’ve written already.
What to Ask for Instead of the Kitchen Sink
I sadly can’t remember where I heard this particular piece of advice in order to attribute it properly, but an established freelancer once told me, early in my career that no matter how big the publication, if you negotiate on rights, they always have a back-up contract to offer.
I often see, in various writing groups that I’m a part of, people who are afraid to negotiate for different rights because they think the editor will drop the assignment rather than change the terms.
If the editor won’t change the terms, you can decide whether you really want to write the piece. But how can you make that decision without all the information?
Try asking for these replacements for some common, catastrophic contract terms:
- Work-for-hire: 5-year, world-wide exclusive in all formats that currently exist or will be invented, followed by non-exclusive rights in perpetuity
- Exclusive rights in all formats that currently exist or will be invented: Exclusive rights for one year, followed by non-exclusive rights
- Exclusive web rights : At a minimum, the ability to display the clip, or a part of it on your webpage, but if it’s a print publication, aim for non-exclusive web rights after a period of exclusivity
- Losing 10% of pay per day for late work: Asking them to add 10% for every day payment is late as well (since no one seems to trust each other, at least ask them to do the same)
Think of it like a ladder. You want to move them down as many rungs as possible so you can reach up and grab the thing they’re trying to hand you.
My favorite tactic?
If the contract is for a ghostwriting or content marketing gig where the work-for-hire clause is non-negotiable, simply tell them:
I write about this topic often, so to make sure that your work-for-hire rights do not come in conflict in even a single sentence or phrase with work that I have already done will take extra time on my part to double check against my past work.
For this amount of work in a work-for-hire setting, I’ll need 1.5x (or 2x depending on how deep the pockets sound) the rate I originally quote.
I’ve gotten it. More than once. And so can you.
I feel compelled to note here again, that I am not a lawyer and these recommendations are based on my own experiences and research and should not constitute official legal council.