Indemnity, moral rights and others that may make or break your next gig
When I was completing journalism school, I had a part-time job selling cell phones and mobile plans. After the sales pitch was finished and a customer decided to buy a new phone and plan, I would print out a paper contract for the lucky new phone owner to sign. It was a contract of several pages of fine print about the plan that they had agreed to be bound to for the next year or two.
I was always nervous about this part of the sale because up until the customer signed, they could change their mind about buying the phone and I would not receive my commission for the time I had already invested. Most people signed after skimming through the terms and many signed without reading at all. Only a handful of people took the time to fastidiously review the details.
Now, as a freelance writer and photojournalist, occasionally I will hear from colleagues and peers about companies with bad contracts or contests to avoid because of unfavourable terms in their contracts. Some of the most common include clauses compelling you to sign away rights to your work for little compensation or giving up the entire copyright.
Up until last year, I almost always willingly accepted all of the terms in the contracts that I was given by editors. As an unestablished freelancer, I wanted to be ‘easy to work with,’ and getting a byline or photo credit in a new publication was always an alluring motivation. It didn’t matter too much to me that a publication held the exclusivity to a story for months. I felt I could always find a new story to work on.
But recently, I came across a troubling clause in a contract that made me reconsider my lax attitudes. The clause in question: the infamous indemnity clause, which holds that if the corporation was sued in connection with the assignment I had worked on, they could hire any legal representation they saw fit to protect their company and I, the freelancer, would be responsible for paying for the legal defence to protect them and to protect myself.
On a freelancer’s salary, I knew I wouldn’t have the funds to support that clause if the worst case scenario did happen and I felt uneasy signing the contract. I asked for the clause to be removed, explaining why I didn’t want to sign the clause. I was uncomfortable with the clause because after I had submitted my work to the publication, I wouldn’t have control over how the work was presented. The content I provided could be presented in a different light.
Eventually, the company changed the clause slightly before I signed the contract. Now the contract stated that the company would not hold me liable if anything happened but that I would also not be able to hold them liable either, which was an improvement to the contract initially presented to me.
The editor said that clause had never been an issue previously with other freelancers, which surprised me since it was a huge liability all of these other freelancers were supposedly agreeing to.
Don Genova, co-chair of the Canadian Freelance Guild, says he has seen quite a few bad contracts in his career and that freelancers should always try to renegotiate clauses that could be detrimental to them.
Genova highlights some of the main contract clauses freelancers should be aware of:
- Indemnity: Indemnity is compensation paid by one party to cover damages or losses.
- Copyrights: Genova says to be wary of selling the copyright of an original story. Under Canadian law, the creator of a work automatically owns the copyright to the work unless they are working for an employer. If a freelancer signs a contract giving away the copyright to the publisher, the publisher could continue to make money off the story after they have paid the freelancer without the freelancer making further income from that story. The publisher could then republish the story in another issue, sell it to another publication or reprint it somewhere else. “Freelancers used to be able to make very good money taking a story [published in one outlet] and selling it to [another outlet] in a different country [or] a different city,” says Genova. He says now, with the internet and new clauses in contracts, the ability to resell an original story is lessened.
- Moral rights: These rights protect the creator of a work and attribute the work to the creator. Genova cautions against signing away moral rights in conjunction with copyright because it gives the publisher the ability to change the story and context in how your work is presented while your name is attached to the story. He gives an example of a writer who had an advice column in a news daily. The company was pressuring her to sign away the moral rights, which would have attached her name to work that could have been used outside of the context of an advice column, such as for sponsored content or in an ad to promote products the author did not agree with.
- Kill fees: Another red flag in a contract is not having a kill fee or having a kill fee that is not representative of the work that has already been put into the assignment. “If you’ve completely finished a story that’s already been accepted by an editor and they decide to kill [the story] from no fault of your own, they should be paying you 100 per cent. You did all the work, so you should be paid,” says Genova.
He also encourages freelancers to pay attention to payment terms in a contract. Some organizations pay on publication, which could be months ahead, while other publications pay after accepting a final draft.
The worst contract he’s ever seen? “It was for representing a company at a trade show or an event. And it said ‘even if we tell you something that’s wrong, and you then tell the public that, it’s still your fault.’”
A resource page on Canadian Freelance Guild’s site says that employers often present contracts like they are set terms but in reality, there is always room for negotiating or at least the possibility of asking questions. “Don’t be afraid to ask for more money or better terms in your contract,” the guild urges freelancers.
Jessica Lee is a photojournalist from Toronto, Canada. She is interested in stories about cultures, lifestyle, and migration. Her work has appeared in The Globe and Mail, The Toronto Star, and Toronto Life Magazine. You can see her work at www.jessicaglee.com.