Understanding Contracts
by Moira Allen

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In a recent survey of magazines, I asked a relatively simple question: "Do you offer a formal contract?" A surprising number said "no." Even more surprising, however, was the number who then added something like, "we write a letter detailing our terms" or "we negotiate a separate agreement with each author."

In other words, yes.

It's a little frightening to realize that not every editor or publisher understands what constitutes a contract. It's even more frightening to realize that many major publications still offer no contract at all. To protect yourself in the changing world of freelance writing, it's vital that you understand the basics of contracts -- and how to negotiate them to your best advantage.

What is a contract?

A contract does not have to be printed on stiff paper with gilded edges to be binding. Nor does it have to be packed with legal jargon. A contract can be any form of document that spells out the terms of a sale, including (but not limited to):

A contract must be negotiated before the ownership of the material actually changes hands. It is not acceptable, for example, for a publisher to simply send you a check and then claim that certain rights have been "transferred" by your acceptance of that payment.

Contracts may be transmitted by fax or e-mail. Faxed signatures are generally considered legally binding. E-mail is trickier; it may lack the editor's signature, and you'll have to print it out to sign it. While agreements may be negotiated entirely via e-mail (without signatures), doing so depends on a degree of trust between author and publisher.

Read any contract carefully. Watch out for loopholes that enable an editor to reject your material after it has been assigned, or clauses that claim additional rights without additional payment (e.g., a clause claiming that "FNASR" also includes "anthology" rights).

Understanding Terms

Any agreement between a writer and a publisher should contain, at a minimum, the following information:

Making Your Own Contract

If a publication offers no contract (or confirms a sale simply by sending a check), it's wise to protect yourself by offering your own letter of agreement. Keep this as simple as possible, spelling out the terms you are willing to offer and nothing more. Such a letter might read something like this:

Dear Editor:

Thank you for accepting my article, (title). I have received your check in the amount of ($), in payment for FNASR. I look forward to seeing my article in the (date) issue.

If no publication date has been confirmed (and especially if payment is contingent on publication), you can use this letter to inquire about this issue. While such a letter may not be as binding as a co-signed document, it does provide a written record of the terms you have authorized.

What Does Not Constitute a Contract

Certain things do not constitute a legally binding agreement, including:

If you don't like the terms of a contract, it's always appropriate to ask whether negotiation is possible. Don't be surprised, however, if the answer is "no." Many editors are not given the authority to tamper with contracts -- which may be prepared by a separate legal department. If you can't negotiate, don't chew out the editor. Instead, decide whether the fee, the prestige of the publication, and/or the possibility of future sales outweigh the negatives.

[NOTE: The author is not a lawyer, and this article should not be considered as legal advice.]

Helpful Sites:

Model Contracts
Model contracts for author/agent, anthology, hardcover, magazine, paperback, and web publishing.

Copyright © 2001 Moira Allen

This article may be reprinted provided that the author's byline, bio, and copyright notice are retained in their entirety. For complete details on reprinting articles by Moira Allen, please click HERE.

Moira Allen is the editor of Writing-World.com, and has written nearly 400 articles, serving as a columnist and regular contributor for such publications as The Writer, Entrepreneur, Writer's Digest, and Byline. An award-winning writer, Allen is the author of eight books, including Starting Your Career as a Freelance Writer, The Writer's Guide to Queries, Pitches and Proposals, and Writing to Win: The Colossal Guide to Writing Contests. In addition to Writing-World.com, Allen hosts VictorianVoices.net, a growing archive of articles from Victorian periodicals, and The Pet Loss Support Page, a resource for grieving pet owners. She lives in Maryland with her husband and the obligatory writer's cat. She can be contacted at editors "at" writing-world.com.


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