Bullish Q&A: Freelance Rights, and How to Negotiate a Contract

I just got a new gig as a freelance writer for a tech start-up blog, on top of my full-time job. In the contract for the freelance work, it specifies that all my writing will be their property under the “works made for hire” part of the U.S. copyright law. I did some research, that seems to be the norm. But I also noticed that you post part of your articles that you write for other websites on your site, then direct readers to those other sites to finish them. Is this common practice, or something you have arranged? I ask because I’d like to create my own blog, and have some access to the writing I’ve done for the tech blog. Should this be included in my initial contract agreement?

 

So, here’s the situation. When I write for education companies, it’s always a work-for-hire. So, my name is on the box of these flashcards, for instance, but I was paid by the hour to write them, and I don’t get royalties if you buy them.

But my experience writing for blogs has been that, if the blog is owned by a large corporation, the standard agreement says that the company owns everything, forever. That doesn’t mean you can’t negotiate, but the negotiation will almost certainly begin with your being sent a long, draconian agreement that is not in your favor.

Startups and smaller companies may not have a standard agreement and may not even bring up the issue of ownership if you don’t. Smaller companies are much more likely to be flexible if you request certain provisions in your agreement.

So what do you really want in your agreement?

If you’re writing the sorts of pieces that you would later want to turn into a book, you need to own your work. I have, at various times, had agreements where the site I’m writing for gets first/exclusive publication rights for 3 months to a year, after which ownership reverts back to me.

But if you’re writing reviews of the latest gadgets, for instance, I don’t think work-for-hire is too much of a problem, since those types of posts become so quickly outdated.

The thing where you publish the first couple of paragraphs on your own blog and send people back to the original site to finish reading doesn’t require you to have any ownership — you’re basically just giving free advertising/hits to your employer. The only thing I might be concerned about is retaining copies of your work in case the site goes out of business and the content becomes unavailable. (In this case, I doubt there would be anyone around to get on your case for republishing your old work, though.)

So, here are some options:

You could try to negotiate for “first rights” for the company, with rights reverting back to you after some period of time.

If that doesn’t work or isn’t worth fighting for, maybe you could try negotiating for rights that revert back to you only in the case that the company ceases publishing.

Or, actually, if your work isn’t republishable as a book, you don’t even need ownership, you just need the ability to also host copies of your work on a resume-type site. So you’d just want something in your contract like, “In the case that the company ceases operations, or removes writer’s work from the website, writer will have the nonexclusive right to republish her work in full on her own blog or website, with the attribution ‘First published on TechBlog.com'”.

I’d also add, as a negotiating technique, that it is often the case that companies are using boilerplate contracts or unusually onerous contracts drawn up by the company’s lawyers — but the person who wants to hire you doesn’t actually really care about a lot of what’s in that contract.

Put another way, if I wanted to start a tech blog, at some point I’d probably hire a lawyer — call her Marie — to draft an independent contractor agreement for bloggers. Marie, naturally, is going to make the contract as biased as possible towards her client, me. However, I just want a contract — I didn’t necessarily demand all that crazy legal language about owning your blog posts in perpetuity throughout all media, including media that has not been invented yet. So if I want to hire a blogger (you) who kindly asks me to strike that part out, I might be totally fine with that.

I have to say, I’ve dealt with quite a few startups (and event locations, and landlords) using contracts full of pretty crazy stuff I was able to have removed. In one case, I asked a landlord to remove large portions of a 60-page lease that contained some pretty strict rules for use of the laundry room and swimming pool, neither of which the building possessed. In another case, a media organization’s lawyer was totally understanding about my wanting to own my articles.

It is almost always to your benefit to ask for some changes. In almost any situation, there’s something else you can ask for that doesn’t really cost the other person anything, so at least ask for that. There are, in fact, some people out there who will not respect you if you unquestioningly sign the first version of the contract you’re given.

It’s important to realize that contracts are often drafted as a starting position for negotiation. As long as you haven’t signed yet, you’re still negotiating.

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