by Rachel Smith
11 March 2015
Hi Rachel and Leo. Thanks for doing what you do and for being a great resource. I’m hoping you can help me out with a query. I started writing for a website this year and they’ve just sent a contract to all the freelancers basically saying any work I produce for them will be the ‘sole and exclusive property of Company’; ie I assign all rights over to the Company for them to, well do whatever they want. Is this standard? I guess it means I can’t resell my work, which is fine, but I guess I’m a bit concerned by the idea that they have all ownership over what I submit them. As another note I’m writing for a music website so it’s not like I’m working on anything exclusive or secretive and they don’t pay that much (I guess I do this more as a hobby). But as mentioned it’s more the notion that I ‘sell, assign, and transfer to Company’ all rights to my work. To Sign Or Not To Sign
Sadly, this sounds a heck of lot like many, many contracts being served to freelancers in recent years. Does it stink? Absolutely. Would you have any luck taking out the offending clauses? Possibly, but if I’m honest, probably not. Should you sign it? Depends on so many things including, probably most importantly, how big a client they are, how much you rely on the income from them, and how often you actually re-use/re-sell your work.
There are several ways to go here. Firstly, you can ignore the contract and keep trucking along. I’ve found some publishers will send out contracts en masse to freelancers and be so busy they just don’t chase them up – or they chase them months later. At which point you say, ‘Oh, it’s still with my lawyer – I’ll get back to you’. And continue delaying for as long as you can. Not ideal, but better than signing until you absolutely have to.
If you’re with the MEAA you can send them the contract and ask them for help. They’ve bargained collectively for freelancers in recent years to standardise contracts across the board at Fairfax, Bauer, Pacific Magazines, News Limited and so on. I’m not sure how much success they’ve had, but I’m hoping someone from Freeline (Fran?) will be across this and can update us in the comments.
The other option is to actually give the contract to a lawyer or someone you trust to look over (my dad is my go-to guy; he’s the toughest negotiator I know!). They can strike out or re-word the clauses they don’t agree with or they feel may potentially get you into hot water. You then initial those clauses, scan in the amended contract and send it back to whoever you’re negotiating with – which might be your editor, a HR representative or a lawyer hired for the purpose. Sometimes the publisher will meet you halfway (you might find a sympathetic editor who goes to bat for you, especially if they value your work and want you to keep writing for them).
More often than not, though, you’ll be told, ‘This is what all our freelancers have to sign and without signing you can’t work for us’ or words to that effect. Then you’re faced with a very difficult decision. Sign, hope for the best and continue to work for that company. Or take a stand, refuse to sign and seek out work elsewhere. I will say though, it’s becoming difficult to find a publisher these days that doesn’t have some kind of sinister contract up its sleeve and it can be a nasty little surprise that comes along with that first commission.
That clause in your contract sounds, unfortunately, pretty standard. Gone are the days when rights reverted back to freelancers after a certain amount of time. As publishers edge more into digital and are flailing about for ways to protect their bottom line, it makes sense to them to have free license to your content to use on any platform they please without having to check with you or pay you a syndication fee for re-use (although some publishers do, like Bauer).
Even so, knowing you’re signing over sole exclusive rights to your copy can be a bitter pill to swallow if you know your piece would have legs in other markets and publications. Also, it’s scary that these rights give them the ability to chop up your piece, re-write it, add bits to it, change quotes – basically do whatever they like to it. If you decide to sign the contract and continue working for them, you can ask that they omit your byline on any re-purposed versions of your piece. Which also sucks, but it might be the lesser of the two evils if they do re-use it in a way you’d never agree with. I’d also check it carefully for dodgy indemnity clauses and whether they try to limit what you can do for other outlets (that was a condition of a Fairfax contract a few years ago – although how they hoped to enforce it, I have no idea).
Have you stopped working for certain publishers because of a draconian contracts? Or have you managed to get a contract changed? We’d love to hear your story in the comments.
Another good piece Rachel.
I’d only add that these sort of contracts also strip the rights of writers to received distributions from Copyright Agency Limited (CAL). Very dependent on the sort of publications you’re writing for and not a major income stream but in my experience CAL payments can be a nice windfall from time to time.
Also, I have heard from an MEAA rep that both Fair Trading and the ACCC would have a go at publishing companies over these unfair contracts but someone would have to put their name to a complaint. It’s possibly the sort of collective action the MEAA should be organising but the problem is that we all have to make a living and the risk of getting black banned etc. is pretty high.
It’s a tough one. While some publishers are greedy assholes who are probably regretting they didn’t think of this wheeze years ago, most, many are being driven by desperation as profitability goes down the toilet.
I recently had a similar experience with a Sydney-based magazine publishing company for which I wrote numerous interview, news and social pieces for an edition and was not credited for the work – by byline or in the contributor panel – despite the fact that every other contributor was credited. When I queried this with the publisher, I was told that the contract I signed exempted the company from the attributing authorship. This is the exact sub-clause:
“You consent to the Company (and its assignees and licensees) using any work created during or in the course of your employment in any way, in any form and in any context without attributing you (or attributing another).”
Any company that builds an exemption such as this into their employee/contributor contracts I find ethically dubious at best.
Wow! That’s a new one to me. How the hell are you meant to be recognised for your work then? Thoughts anyone on how to deal with this particular smack in the face by the wo/man?
Put that down as publishers sinking to a new low.
I write quite a few corporate blogs for which I do not get credited for, however, I still use them as a clip if a potential client asks for a sample of my work. So far, clients just take my word for it when I say it’s my work and if I was every queried I’ve got the Word document I filed the copy with.