Contracts Matter: A Conversation with Two of ASJA’s Top Negotiators

I don’t think enough about contracts. Of course, I review them and negotiate changes—especially regarding when and how much I’ll be paid—but I tend to be a little slipshod when it comes to things like performance and world rights, the latter being where you grant the publisher exclusive rights in perpetuity, rather than limiting them as one time for a specific duration, of say three months. And then there’s the dreaded indemnity clause… more on that later. When it comes to skirmishes over the finer points of a contract for an article or book, I’m bit of a weenie and try to avoid conflict altogether.

This can be both a good and bad thing—good, because being amenable and pleasant helps garner repeat clients and assignments. But it can also be disastrous if, for example, you happened to be Jerry Siegeland and Joe Shuster, who sold the rights to their “Superman” character to DC Comics for a miniscule $130. Although that was back in the late 1930s, the men spent much of their remaining years fighting DC in court, with lawsuits continuing with the heirs today.

Given the proliferation of digital, visual and spoken media, awareness of rights is more important than ever. A prime example is past ASJA president Jack El-Hai (@Jack_ElHai on Twitter), whose historical true-crime book The Lost Brothers will be published in the fall and who also publishes a monthly popular-history newsletter, Damn History. Two of his books are currently under option for film/TV and a third is being adapted as a podcast. A few months ago, El-Hai walked away from an assignment with The Atlantic over a rights dispute.

“When I pitched this story and learned the editor was interested, I told her I needed to retain full movie/TV rights,” he said. “Even so, the contract she offered gave The Atlantic half of any performance rights licensing proceeds, among other defects.” After considering the rate of pay (on the low side) and the fact that he’d been working on the article for more than two years, “when The Atlantic said it could not change the contract, I walked away from their offer.”  He also knew he could sell the story elsewhere and that he had exclusive access to the sources.

Then “three days later, the editor came back to me and agreed to my terms.”

Know Your Contracts

ASJA President Milt Toby, an attorney with an in-depth knowledge of publication contracts and an award-winning author who writes about thoroughbred racing, feels that contracts are trickier than ever, especially in content writing. “With contracts for magazine and books, you know where the troublesome clauses are. With content writing, the language tends to be personal service and generic and may have nothing to do with writers at all.” For example, one contract for content writing services required that the writer have liability insurance that not only covered errors and admissions but also added the client as an insured party and included Worker’s Compensation and any damages to the place of business and vehicles. Such insurances are usually only “critical for those who may be held legally liable for the injuries of others, especially medical practitioners and business owners,” according to investopedia.

ASJA Confidential sat down with Toby and El-Hai to get the scoop about picking your skirmishes when negotiating rights and contracts.

Indemnity clauses. A provision in which one party agrees to compensate the other for any harm, liability, or loss arising out of the contract, indemnity clauses are basically “asking the writer to risk everything they have on behalf of an article that pays, say, a thousand dollars,” notes Toby. Rarely are lawsuits settled in one go-round, “there’s also the appeals process which can drag on for years.” Making the writer responsible for this is a ticket to professional and financial ruin.

If you can’t strike the indemnity clause from the contract entirely, “make it as writer-friendly as possible,” continues Toby. This includes adding language that the writer has no liability for frivolous lawsuits and is responsible only when liability is determined by a court of competent jurisdiction, after all appeals.  Also, “beware of contracts that allow publishers to negotiate the settlement without the approval of the writer.”

Onerous contracts. Say you love a project, but the contract is awful. Or you’re a beginning writer who desperately needs the clip. What should you do? El-Hai advises being proactive: “If, after you propose the story and there’s an expression of interest, tell the editor what your contract requirements are. That way, the editor knows about it in advance” and can serve as an advocate. And if the publication or content provider is unwilling to concede an important point, “don’t sign the contract,” he continues. “Being psychologically willing to walk away makes you stronger.”

Writers needing the clip or otherwise wanting to do a project may have a hard decision. “Once you sign the contract, you can’t take it back,” notes Toby. And you’re likely out your fee, if, say, you spend six months researching for a “pay on publication” piece and the magazine or website goes under. Or you may have to wait a very long time for your money should they decide to hold it indefinitely.

However, once you get that credential or establish yourself in a certain subject matter area, “you will be in a better position to negotiate,” adds El-Hai.

Negotiation Tips. As with public speaking and other life challenges, negotiation is an acquired taste that requires practice. “Everything is negotiable,” asserts Toby. “It just depends on how badly the client wants you.” While blockbuster authors like Stephen King have a lot more clout, savvy writers can utilize bargaining power. “Once you’ve reviewed a contract, you can put things into three categories—deal breakers, as ‘if this is in here I’m not going to sign;’ items in the middle, ‘I can live with them but would rather not;’ and bargaining chips that you don’t mind losing.” Then it becomes more of a give-and-take. Since the client doesn’t know your priorities, you might end up with more than you expected.

Another tactic is to approach the client with the issue as if it’s a problem to be solved. Ask them what they think should be done, then talk through it (actually it’s better to listen more, because you might get more). That not only avoids direct confrontation but also may reap the above-mentioned benefits. “If they really want you, they will want you to be happy,” observes El-Hai.

Expanding Your Rights Horizons. Authors can do themselves a disservice if they fail to consider other media for their work. Although the “Superman” case is an extreme example, “every time you sell all rights, this means that your publisher can resell and reuse your work in any form without compensation to you,” remarks El-Hai. And much more can be at stake than just the occasional reprint: “It’s a matter of what they are going to do with your work and how you can share in the benefits they will derive from it.”

That said, although El-Hai always retains performance rights, he hasn’t quite figured out the magic sauce that leads to movie and TV interest. “Mostly it’s serendipitous, although I try to publish stories in a way so as many people as possible see it,” such as methodically Tweeting various tidbits of interest.

Bottom line: “You need to thoroughly read and understand every contract,” emphasizes Toby. “If you don’t like it, don’t sign it.” Even if it hurts.

< em>Members can find more information on ASJA Guide to Common Contract Questions, which covers everything from the basics to more complicated issues.(In the Members Only section, under “Resources” and “Contracts and Conflicts”).