Terms that should alert freelances to problems with a contract
AS WE update the Freelance Fees Guide general advice section, we thought it would be useful to update some of the classic Freelance pieces that it references.
I’M NO LAWYER but... As freelance journalists, all of us need to know how to complete that sentence with a clause such as "I do know what 'assign copyright/warrant/indemnify' means". Because we'll be very lucky to get through a freelance career without encountering a fair few corporate contracts full of tortuous phrasing and, often, torturous intent.
NUJ members have been calling for a contract glossary to help at least spot when the amber-to-red lights should be flashing. So here is one, accompanied by a little advice on how, by negotiation, the wording might be revised so that you don't lose ownership of your work and/or your shirt.
So what is the media company that wants to use your work - your client - after?
- Ownership of a piece of work. Under UK law freelance/self-employed creators, including journalistic writers, photographers, cartoonists etc, own copyright in their work. Staff creators do not - their employers do.
- The equivalent in most of the world is the law of "authors' rights". This gives authors, including employed authors, rights that are more like personal rights than property.
- All the rights contained within copyright, plus any other rights connected with your work (they want it "all", whatever it is).
- Any maker of a piece of creative work, including journalistic writers, photographers and cartoonists . This term is used in the 1988 Copyright, Designs & Patents Act, but also in some corporate contracts.
‘You hereby license to the company the following usages...’
- To ’license‘, in copyright contract terms, is to give permission for specified uses - in exchange for specified payments, preferably! (Such payments might be expressed as percentages - of the original fee, for instance, or of a syndication fee - or as actual amounts of money.)
- Only the copyright owner can issue such licences, so that's usually where the freelance wants to be: the copyright owner, licensing usages in exchange for coin of the realm (though republican currencies are also acceptable).
‘You hereby assign copyright/all rights to The Company’
- If you agree to this, "assign" means you have transferred ownership of your copyright - all rights in your work - to the Company and you no longer have any rights to it (unless the contract of assignment says otherwise - for example sometimes syndication payment to the freelance is contractually guaranteed despite the company taking ownership of the work).
‘The freelance shall retain the copyright in the material...’
It's looking good - but always read what comes next, in case it's something like:
‘...the company shall have the exclusive right to use, publish, syndicate and/or license all other rights in the material for the full term of copyright.’
- This is known as an ’exclusive licence‘. It leaves you with the shell of copyright ownership and scoops out all the contents, sneakily achieving the same result as an all-rights assignment - that is, you cannot resell your piece of work so, unless the contract also specifies further payment(s), you cannot make any further income from your work.
The ‘full term of copyright‘
- The ’term of copyright‘ is how long it lasts: in journalistic material this is the author's life plus 70 years after his/her death.
- ‘Exclusive‘ is a word to watch out for. If you grant someone an exclusive licence, then you may have given up the right to grant anyone else any kind of licence - so it's rather more exclusive than an "exclusive" news story!
- At the least, you have given up the right to grant anyone else a licence to do the same kind of thing with the work - for instance, the client may graciously "grant" (that is, leave you with) the right to use a newspaper or magazine piece in your Collected Works volume. Contrast ’non-exclusive‘, which comes next for clarity.
‘The company shall have the non-exclusive right to use, publish etc’
- The company can reuse your work in any way the contract specifies (with further payment to you or not as per the contract), but you have the same rights of reuse yourself: that is, you can do whatever you like in terms of further sales of the piece of work where the rights you have agreed to license to the company are non-exclusive.
- One caution:if you have sold one publisher non-exclusive rights in a piece of work, you cannot sell another publisher exclusive rights - the two are, erm, mutually exclusive.
‘You hereby license the company to syndicate the work to...’
- To ’syndicate‘ means to sell your work on to other publishers. You can do this yourself, negotiate fees and so on.
- But if you license either the original publisher or a syndication agency (a photographic agency is in effect a syndication agency although they're not called that, they're called photographic agencies) to syndicate your work you should be paid at least 50 per cent of the gross fee the purchaser pays (sometimes this may be a lot more or a lot less, but 50/50 is very common).
‘I hereby license to the publisher one use of the work / first usage of the work / First British Serial Rights to the work...’
- These are three variants on normal, narrow licences for use. Very often a freelance will not want to and will not be asked to offer a wider license than one of these. So "one use" is just that - note it doesn't say it's "first use" - because "first use" is different and means what it says.
- These days, though, your client may be assuming that "one use" includes both the web and the print editions. This may be an opportunity to negotiate if that's not what the contract says - see the Freelance Fees Guide section on negotiating.
- For clarity the use should be defined, in terms of the basic usage parameters: time, medium and territory. Hence, the common term, especially in magazines, "FBSR" (or FBS) meaning first use in Britain during the cycle of the publication (a month on a monthly, a week on a weekly etc).
- Is just archaic lawyer tosh of course, along with assorted "hereinunders" and "aforealludedtos". Fear not the compound preposition or adjective, concentrate on the key words and you probably will get a hammerlock on this sodding contract, honest.
‘You irrevocably waive any and all moral rights you have in the work...’
- Try to resist this clause. If you're waiving, you could be drowning. To ’waive‘ a right is to give it up.
- There are two main ’moral rights‘, established within the 1988 Copyright Act: a) the right to "identity" - to be named as the author, i.e. byline or credit, b) the right not to have your work treated in a "derogatory" manner (such as, the meaning distorted in some fashion). If you "waive" them they don't exist any more in any medium.
- Wrinkles: UK law excludes moral rights in newspapers and magazines so contracts in those fields which demand a waiver are thinking about when your work maybe gets reused on the web or in a book where moral rights do exist.
- And the moral right of identity (also known as "paternity") actually needs to be ’asserted‘ in order to stand contractually, so borrow the wording from the front of any novel you're reading, which goes something like...
- Writers may need to point out to editors that your moral rights do not stop reasonable editing. It's the integrity of the final version - which, ideally, they will have agreed with you - that's at stake here.
‘The author hereby asserts his/her moral right to be identified as the author of (the work)...’
- You need to ’assert‘ your moral right to a credit or byline for it to take effect. (Yes, this bit of UK law is distinctly odd.) The phrase above will do nicely. It can be in the same file as your words or pictures, or it can be on your invoice.
- Asserting these rights doesn't stop you waiving them afterward. Common sense would lead you to avoid that.
- In newspapers and magazines the law doesn't give you any moral rights anyway. You can ask the publisher to agree to write them into the contract - which, oddly enough, following a negotiation with the NUJ years ago, the Guardian and Observer do.
- It's still worth asserting your moral right to be identified, in case your work is later used in a book or in another context where the right does have effect.
- By the way, you put the "hereby" in to show you can use redundant tosh as well as any high-priced lawyer. Sadly, the hereinunder is by no means redundant; in fact, it's downright dangerous.
‘You warrant that...’
- ’Warrant‘ means guarantee or promise. Look out. You're about to be really held to account, potentially blamed for... all sorts. The rest of the sentence will probably say any or all of: "the work will not infringe the copyright, moral rights, rights of privacy or any other rights of any third party. Nor will it be defamatory, obscene, blasphemous nor otherwise actionable by law.’
- No sensible person could sign such a warranty - except under duress, of course, which happens - because only courts of law, in retrospect, could determine any of these breaches (though the union is keen that members do acknowledge and take seriously their responsibilities to other authors on the copyright front). Many editors/publishers who issue these contracts really don't care if you just delete this clause and the one that comes next. But a helpful fallback position, because it eases the absoluteness of the warranty, is to insert "to the best of your/my knowledge and ability" at the start of the sentence or wherever it works grammatically. Because the full-on warranty really bites when you see that it's followed by...
‘You indemnify us from all claims, proceedings, costs, losses, expenses, and any other liabilities (arising from your work)’
- This we know as the "lose-your-house" clause. Or "your-shirt" if you haven't yet joined the home-owning democracy.
- If you sign up to this along with the warranty, then you have agreed to pay (indemnified the company against paying) the full costs of any civil suit or criminal prosecution arising from your work - whether the legal action is justified or not.
- Again, many editors/publishers aren't bothered at all if you delete this section of the contract in its entirety. Other wheezes to mitigate the indemnity clause include trying to limit the areas of liability (for example cut it back to copyright only, where you do have some control because you should know if you're potentially plagiarising someone... and then not do it) or limiting your liability to the amount of the fee for the work (which, if the worst occurs, could limit your liability to, say, £500 instead of a million) - again these gambits are often accepted by the staff human beings you deal with, regardless of what corporate lawyers recommend.
So that's the dodgy words, and suggestions on what you should eliminate if you can - or duck and dive around if you have to.
If you see any of these wailing-siren words and aren't sure what to do next, the NUJ Freelance Office has immense knowledge and experience and can help you try to improve such heavily "legaled" contracts.
However, square-one advice is to create your own contracts out of your pitching-and-dealing email exchanges with commissioning editors. Your first choice is not to get it in writing - though that can be OK - it's to put it in writing: then you, the freelance, are in control.
- This was originally published in August 2011 and we updated it in June 2020.