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8-1 Negotiate Your Contract

Writers! Dig in Your Heels! Negotiate!
(c)2010, Mona Leeson Vanek

BOOM! Hey, got your attention, did I? Look at the small print in that contract! Now, before you sign it!

Do you see those little words, 'electronic rights in all medium known and unknown'? Or perhaps there are other far-reaching clauses? Do you have any idea what rights you're signing away?

The time to negotiate rights is before signing the contract.

Today most major magazines enter into contractual agreements with authors taking all the rights the writer will let them have, with clauses covering audiotape, microfilm, microfiche, CD-ROM, and broad electronic rights like database.

Many magazines have electronic versions and print versions. Some offers say, "Buys one-time
serial rights, including the right to reprint in the magazine for 50% of the original price."
Today's contracts at major as well as small-circulation magazines include the words 'and for electronic rights in all media known and unknown.'

Freelance writers may still strike everything beyond use in a single print edition by insisting on 'First North American Serial Print Rights Only -- all electronic rights excluded,' or ask for more money.
A writer has to negotiate these rights.

Rule 1: a contract is ALWAYS negotiable and the publishers almost always start with the most in-their-favor contract they think they can get away with. Many of them actually have two "standard" contracts, one they send to new unagented authors and another, more reasonable one they send to agents or to authors who obviously know the ropes.

Rule 2: the more rights you license, the more a publisher pays.

When you receive a contract you're not prepared to accept, write back and thank them for sending the contract and that you'll have your attorney look it over and get back to them ASAP.

Now they're on notice that you're not accepting ridiculous terms. Since it's always legal to act as your own attorney, and you ARE going to be looking the contract offer over very carefully, you're not lying.

Publishers generally are more receptive to a request to change their contract than they are to accepting another different contract. They feel that they're winning some and losing some, rather than losing their entire contract and having yours replace it.

Make the changes to their contract by highlighting the unacceptable sections and inserting notes. Or, or send a separate letter that references each section by number, with your suggested changes keyed to them.

If an offer lower than you like is made to you by an editor on the telephone don't be bashful about replying, "Well, I had in mind xxxx amount," upping the ante to reflect what you think your work is worth.

Even with successful negotiating, freelancers are too often finding themselves inadequately protected. For instance, when a writer negotiates electronic rights it's important to try to set time limits and to only sell one-time rights with archive-able reading option. ASJA advises writers to spell this out very clearly.

If you see one vicious clause, that boils down to 'rights of the purchaser to secure copyright as proprietor', or in other words, gives the publisher the copyright, always excise it. Also, the state where disputed issues will be heard is another important item.

Know what rights you are selling to the first publisher
  • Become familiar with rights, their terms and what they mean.
  • Ask the American Society of Journalists and Authors (ASJA) if you don't know, or do a search on the web and do your homework before you sign over to the publisher any rights you want to retain.
Don't presume that marking your manuscript with only specific rights, such as 'first periodical' or 'first North American Serial' reserves any rights to yourself. Make sure the information is in your contract.

Don't be afraid to negotiate every contract with vigor. Remember that asking about rights and kill fees marks you as a professional. Ask the editor to send you a contract reflecting the price, rights and conditions you discuss. Show that you value your work.

When the editor of a magazine says, "We can't change the contract," what is meant is "We won't change it for you."

After your article has been accepted and is scheduled for publication, make sure you have a copy of the final agreement executed in writing before the publication date.
  • If the publishing company delays until your accepted article is already in the pipeline, your position becomes stronger as the publishing date nears. Replacing it will be more difficult, and you have the editor's written or verbal agreement to purchase.
Be sure to contact the accepting editor periodically, jogging them that the contract hasn't been executed. Until it is, the manuscript remains yours to sell. On occasion, instead of signing a contract I objected to, I have provided my own contract which the publisher then executed before going to press.

There are, however, still many publications that don't use contracts.
  • According to US law, if there has been no discussion of rights, one-time rights or first rights are assumed. This is currently true for paper-print publications, but electronic rights are still, legally, far from being clear and are being influenced by many factors.
The Credit Union magazine guidelines provide insights:

Contract help is available from the following

Chapter 15 - The Many Facets of Freelancing:

Next: 8-2, Collecting What's Due You:

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