You can’t negotiate if you don’t know what they’re offering.
I was visiting my parents in January when I got an out-of-the-blue email from an editor for a large international news organization. She referenced a recent event that was both newsworthy and complicated. They needed someone who could unpack it for their readers. Might that be me?
You bet it might. Sometimes an assignment is too good to pass up, even if you’re on vacation – this particular news event fit my current interests perfectly. We had a quick exchange of emails outlining terms, and then I got to work.
After several phone calls and one frenetic writing session at an antique card table in my mother’s home office, I had a solid first draft. And then it got better. My new editor was a dream. Her questions were thoughtful; her comments made sense; she made me make my work better. Pretty soon the story was ready to go. Then she sent me a contract.
That’s right, they sent a contract after the work was done. I’d heard of this practice. But it had never happened to me before, and I’m embarrassed to admit I was surprised. I want to say that I assumed our initial email exchange was my contract; that does happen. But the truth is that in my excitement to start the story, I didn’t really think about it at all.
So, there I was, with a finished piece I really liked and the worst contract I’d ever seen. They wanted all rights in all mediums, including adaptation rights that would let them leave me out of a movie deal based on my reporting. Given the fee they were paying, this was insane – but it was an insanity I could live with. However, they also wanted me to warrant things I couldn’t possibly know, like that the material could not be considered unlawful or defamatory anywhere they publish. Now, I make it a practice not to publish material I believe is defamatory, but I don’t know the laws in every country this outlet reaches. However, even with my nonexistent legal training, I do know that not all countries value and protect a free press.
But then it got worse:
“You will defend (if requested), indemnify, and hold Large News Organization and its parent, officers, directors, employees, and sublicensees harmless from and against any and all losses, damages, or injuries (including reasonable attorneys’ fees) that arise from a claim, which, if true, would constitute a breach of any representation and warranty set forth in this Agreement.” (emphasis added)
Note that I would not just be on the hook if the claim were true, I’d be on the hook to defend against any claim, that, if true, would be a problem. I immediately sent the contract to a lawyer friend – was this as bad as I thought? Were they really asking me to take full financial responsibility for any lawsuit against the news outlet, regardless of whether my work was actually the cause? The lawyer confirmed my fears, and she suggested some changes I could ask for. I sent those off, and my editor called to talk through my concerns. She seemed to understand and said that though she was not authorized to change the contract, she’d take the issue to their legal department. There was a bit of back and forth after that, but in the end the only changes the legal department was willing to make didn’t fully address the underlying problem. (In fact, after seeing the proposed changes, my lawyer friend once again confirmed my fears, ending her message: “That said, I don’t know norms in the publishing field around this, but if this is the norm, I think it’s an exploitative one.”)
My editor was sympathetic, but explained that the decision was out of her hands. Would I still publish the piece with them? No, I wouldn’t. For the first time in my career, I pulled a finished piece. I cared about the story, I cared about reaching their audience, and I knew the chances of a frivolous lawsuit were small. I also guessed that, were such a lawsuit to happen, the chances they’d really try to stick me with the defense bill were probably small as well. But, even if the risk was small, the potential liability was huge. And, frankly, unreasonable. Can I guarantee that my work is my own and that I follow good journalistic practices? Certainly. Can I guarantee that I will never, ever make a mistake? No, I can’t – and neither can any journalist. (Corrections columns, anyone?) Just as important, can I guarantee that even if I’m completely right, there are no nutcases in their audience who will be upset by what I write and decide to sue? Of course not.
The bummer here is that I knew all of this going into the assignment. In over a decade of freelancing, I’ve negotiated dozens of contracts. And of course I’ve read Chapter 22 in The Science Writers’ Handbook, in which Mark Schrope highlights some of the worst clauses you can expect to see in a writing contract and suggests strategies for fighting them.
However, those strategies are more likely to succeed if you negotiate before you start working. At the very least, when you negotiate upfront, you have the option of declining the assignment rather than declining to publish and get paid for completed work.
In my case, at least the story does have a happy ending. I pitched a different version of the story to an outlet I already knew and liked – and that has a contract I don’t love but can at least stomach. We’re in edits now.
Image credit: Public domain photograph by Messrs. Mansell & Co.