willing to discuss a contract in It is always up to the writer whether to take a job or not,

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1 The Reality of Today s Writing Contracts We live in the age of take it or leave it. In the past, writers and their representatives could negotiate contracts with publishers line by line, clause by clause, until the contract was deemed fair by both parties. Today, to the great frustration of professional writers, the opposite is often the case. Publishers will tell writers to sign contracts exactly as they are written or go find paying work elsewhere. Obviously, this style of doing business is inherently unfair to the writer. In cases where a publisher is willing to discuss a contract in It is always up to the writer whether to take a job or not, good faith, writers can do a lot and to decide whether the income being offered is worth of good for themselves by whatever terms the publisher demands. understanding basic contract terms and knowing which clauses are most important to negotiate. This guide to common questions and clauses is intended for writers who find themselves able to negotiate the terms being asked of them by publishers. For writers dealing with take it or leave it publishers, we hope that the information in this guide will make clear exactly what rights are being handed over (usually, all of them) and what legal burdens are being shifted (often, all of them) so that writers can be informed about what they are putting on the line in exchange for an assignment. It is always up to the writer whether to take a job or not, and to decide whether the income being offered is worth whatever terms the publisher demands. We hope the information in this guide will help all writers weigh their options with a full understanding of what is at stake.

2 First Things First: Get a Signed Contract Many of the questions we receive at the ASJA Contracts & Conflicts Committee are from writers who began work on assignments without having a signed contract in place. We recommend having a signed contract in hand well before work begins, which is when the writer s negotiating power is strongest. Having a signed contract also In any business deal be it with a publisher or prevents foreseeable problems. For a plumber the smartest course is to have the contract instance, there are countless in place before the work begins. examples of publishers who receive work from writers and then send a contract afterward, stating that unless the writer signs the contract as-is, there will be no payment for the work completed. This is not legal, but it is a common occurrence, and the terms of such contracts are often unfair. The absence of a contract usually creates more problems than are necessary. In any business deal be it with a publisher or a plumber the smartest course is to have the contract in place before the work begins. Always Get Everything in Writing It is paramount that any contract be put in writing and be signed by both parties, but it is also a good idea to do all negotiations in writing, as well. This creates a paper trail (albeit digital, via ) that will support a writer s case in a court of law. If a writer prefers to negotiate contract terms by telephone, then the writer should also follow up each phone call with an summarizing the conversation, and get a reply from the publisher so that there is a written record of the negotiation having taken place.

3 Basic Terms that Every Contract Should Contain At a minimum, every contract for a writing job should include: Summary of assignment, outlining what the publisher wants written Total word count, including any sidebars Amount of payment Amount of allowed expenses Payment terms (invoice shall be paid upon acceptance of work) Deadline for work to be completed Kill fee (what writer is to be paid if the work is completed, but not published) If a writer has these basics in an assignment contract, then as long as he completes the assignment on time, he should be legally entitled either to full payment or to a kill fee. In a court of law, an chain that outlines these terms, and then shows the terms being accepted, counts as a written contract. Thus, if an editor is failing to provide a contract, a writer may these terms to the editor and save the ed response as legal proof of the assignment and payment details. Common Legal Clauses and How to Try to Negotiate Them Some of the most financially dangerous clauses for writers have become standard in publishers contracts. On the following page, we offer a chart showing six snippets of language that we commonly see, and that writers are likely to encounter. We explain briefly what that language means and what can be negotiated to make the terms fairer for the writer.

4 What it Says The fee for your Article shall become payable upon publication of your article. What it Means Even if you meet your deadline, the magazine can hold your story indefinitely without paying you. This can legally go on for years. What to Negotiate Fee for Article shall become payable upon acceptance of Article. Acceptance of Article shall be given no later than 30 days after deadline is met, or kill fee shall apply. You agree that your Article will not be defamatory or violate any right of privacy, copyright, or any other rights of any third party. Your story satisfies every law worldwide, including, say, online pornography laws in Saudi Arabia, and none of your sources has conflicts, such as a confidentiality contract about quotes provided. You agree that your Article will not, to the best of your knowledge, be defamatory or violate any right of privacy, copyright, or any other rights of any third party. Author expressly waives any moral rights Author may have in and to the Work and the Publisher s exploitation thereof. If the publisher edits mistakes into your work and prints them under your byline, damaging your reputation, you have no recourse. Strike this clause entirely whenever possible. You hereby grant and assign to Publisher copyright and all other rights whatsoever throughout the world, in all forms and all media. OR You hereby agree that Article is a work made for hire. Your work is the property of the publisher for the span of your lifetime. You may never reprint it anywhere again, including any quotes from interviews, information presented to the reader, the title of the piece nothing. You hereby grant and assign to Publisher first worldwide serial publication rights, exclusive for three months from the on-sale date of the issue in which the work appears. This means that after three months of publication, you can do whatever you want with your work. Author agrees to hold harmless and indemnify the Publisher against any claim, demand, suit, action, proceeding, recovery or expense of any nature arising from any claims of infringement of copyright, libel, obscenity, invasion of privacy, or other breach of the warranties in this contract. If anybody sues the publisher for any reason even a silly suit then the publisher can hire lawyers to defend itself, and you have to pay for them, no matter how high the publication s legal fees rise. Strike this clause entirely whenever possible. If that is not possible, add to the end:...provided that liability is finally established by a court of competent jurisdiction, and that judgment is sustained after all appeals have been exhausted. This means that, yes, you ll pay, but only if somebody serious sues and wins. be construed as such. This communication is provided in response to questions frequently raised by ASJA members. Specific legal questions should be referred to recipient's counsel.

5 If You Have Just One Sticking Point There will be cases where writers are unable to negotiate any of the clauses on the previous page, but where the publisher may consider a single exception. In these cases, the writer may draft a Letter of Understanding, which, even if only in form, stands up in a court of In cases where there is one item holding up the signing of a law as a legal document. contract, a Letter of Understanding may suffice to give each party what it wants. For example, a writer may believe that her work has the potential to become a stage play. A traditional publisher may be keen to protect all copyright for print and feature films, but may hold no interest in stage plays. In such a case, the writer might sign the publisher s contract as is and then draft an Letter of Understanding about stage plays. This can be as simple as writing, Per our conversation of July 26, 2015, the signed contract shall pertain to all rights except use in a stage play or other theater production. The right to have this work adapted as a stage play or theater production shall remain with me, the writer. Please respond to this e- mail to affirm that we have agreed to this item separately from the written contract. A Letter of Understanding is a legal maneuver around a signed contract, but a signed contract remains the best option for any writer. However, in cases where there is one item holding up the signing of a contract, a Letter of Understanding may suffice to give each party what it wants.

6 Enforcing Today s Writing Contracts Here s the reality: The terms that any writer negotiates are only as good as that writer s pockets are deep. It will cost money to enforce even the most ironclad contract and it s safe to say that the publisher is likely to have far more money than the writer should a problem arise. The first course of action that a writer can take in a contractual dispute is to politely contact the publisher and ask that a remedy be set in motion. In many cases, publishers will make good if the writer points out that she A) knows her rights; and B) is intent on enforcing them. It s the Most small-claims courts are designed for self-representation squeaky wheel gets the grease by the plaintiff, with low filing fees and step-by-step principle, and often, it works. instructions online or in booklets. In some cases, writers may use small-claims court if a contract is violated. The rules of smallclaims court vary by state, but generally speaking, small-claims court can be used for small breach-of-contract claims (such as failure to pay a few thousand dollars to a writer who has completed an assignment under contract). Most small-claims courts are designed for selfrepresentation by the plaintiff, with low filing fees and step-by-step instructions online or in booklets. Writers who win a small-claims court judgment may then hire a city or county marshal to enforce collection from the publisher. For larger sums owed, writers usually need attorneys to file motions in state district or circuit courts. For copyright violations, writers usually need attorneys to file motions in federal court. Legal fees can fast outpace whatever amount is owed, so again, it is ideal if a resolution can be negotiated outside of the court system. The ASJA Contracts & Conflicts Committee does not provide legal advice, but it does offer help with common questions. We are standing by to assist ASJA members however we can at asjahelp@asja.org.