To push back or not to push back on contract negotiations? That is the question that vexes us all. None of us want to be seen as ‘difficult’ by our clients, especially new ones. And really, how likely is it that your story about fruit bats will trigger a lawsuit? Very unlikely.
How likely is it that a publisher will truly put you on the hook for paying the court costs? Also very unlikely. But is even the teensiest risk worth taking with your personal assets: your house, your Mazda minivan, your kids’ future college tuition? Hmm, also not likely.
An editor recently approached a SciLancer with a magazine assignment for a non-profit organization focused on animal care. The writer was eager to work for a new outlet on a fun topic, but was dismayed with the contract that was sent. When the writer inquired about a few changes to make the indemnity clause a bit more palatable, the editor sent this not-uncommon response: “The contract is required by our legal department and we can’t change it. Let me know if you’d like to proceed with the story.”
Now, quite frankly, I consider that response beyond lame.
First of all, a contract, by definition, is meant to be an agreement between two or more parties. And it should serve to protect the interests of both parties. When a publisher sends you a contract, it is not an edict being handed down from on high, but rather the starting point of a negotiation. Far too many—admittedly, busy and overworked—publishers and editors seem to have forgotten this.
Secondly, such a “take it or leave it” declaration turns this into what lawyerly types sometimes call a ‘contract of adhesion.’ In other words, the party in the stronger position sets all the terms and conditions, and the weaker party has little or no negotiating power. In US courts, contracts of adhesion are often ruled unenforceable.
But, instead of wallowing in legal self-righteousness, our SciLancer took the high road and sent the best response I’ve ever encountered. It’s an example of how a little enlightened diplomacy could go a long way, so I share it here.
I really want to take the assignment and start a relationship with the magazine. I’d also like to see if there’s any way to add just a clause or two to the contract. I plan to abide by all warranties. My work will be original and factual. I will not plagiarize. But there is never any way to foresee what someone else might deem to be libelous or defaming. As it stands, the contract puts a lot of risk on me – I am agreeing, via clauses E and F, to pay any and all costs associated with any lawsuit that arises from anyone who decides to sue, even if the complaint turns out to be frivolous. I am assuming the chances of that happening are extremely small, but if I got unlucky, it would cost me a whole lot more than the $1,500 story fee!
I’ve convinced lawyers to change contracts in the past. If they won’t strike the indemnification clause, I’d like at the very least to add “to the best of the Writer’s knowledge” to all of the warranties so that I am only responsible for legal fees if I intentionally defame, libel, plagiarize, etc. I’d be happy to explain more over the phone why these changes are important to me (and should be important to all freelancers who write for you). Or if it would help, I could also talk with the legal team directly to see if we can work something out that protects me more than the current contract would.
I imagine these details will never come into play, as it’s hard to imagine someone suing about [cute little animals], but these kinds of contract clauses are something that both the American Society of Journalists & Authors and the National Association of Science Writers really urge members to push back against, both for our own personal protection and for the pursuit of a more writer-friendly industry in general.
I hope we can work something out!
Unfortunately, the editor replied that it was too late to get contract changes approved before the article’s immediate deadline. However, he would keep the writer in mind for future stories.
When thinking about your own pushback threshold, here are seven tips from media lawyer Stephen Gillen who spoke last weekend at the ScienceWriters2014 Contracts Boot Camp session organized by Hillary Rosner (bio) and Mark Schrope (bio):
1. You won’t get what you don’t ask for.
2. You don’t get everything you ask for (and if you do, you didn’t ask for enough).
3. You are not the first to ask.
4. No writer ever gets dumped just for asking.
5. Publishers have more than one contract.
6. You don’t need to fix everything.
7. If you can’t get the contract changed, ask for a side letter or email (to document agreements made with an editor).
Schrope added another strategy to that last point: you can ask for a contract to cover only one specific assignment, rather than acting as a blanket agreement for all future work.
[Editor’s Note: We are neither lawyers, nor do we play them on TV. Nothing in this post should be considered legal advice.]
UPDATE 11/9/14: The SciLancer just got and accepted an assignment from the editor. So, in fact, #4 above is true! Unlike with your little brother, no harm ever came from pushing back on contracts.