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 preprinted legal document, with blanks for the name of the author,
the title of the material being sold, and the fee.
- A letter of agreement. This may be an original letter tailored for a
particular sale, or a standard form letter.
- A "fill in the blanks" or "check the boxes" form.
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).
Any agreement between a writer and a publisher should contain, at a
minimum, the following information:
- The title of the material being purchased.
- The rights being purchased (e.g., first rights, one-time rights,
reprint rights, all rights, etc.) For a discussion of rights, see Understanding Rights and Copyright
- The medium (or media) to which those rights apply. For example, if you
sell FNASR to a print publication, will you still be able to sell "first
electronic rights" -- or vice versa? Does the purchase of FNASR entitle a
print publication to print your material online as well?
- The distribution of the publication. FNASR is a virtually meaningless
term on-line. Make sure that an electronic sale doesn't compromise your
ability to sell international rights elsewhere.
- Payment, including the exact fee offered for your material and when you
can expect to receive it (e.g., within 30 days of acceptance or
- Your obligations and liabilities. Some contracts address issues of
accuracy, originality, and libel. Make sure that such clauses don't demand
more assurances than you can reasonably provide.
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
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
What Does Not Constitute a Contract
Certain things do not constitute a legally binding agreement,
- A stamp on the back of a check indicating something like "Endorsement
or deposit of this check transfers all rights to your material to
- Writer's guidelines, whether published in a guide such as Writer's Market or distributed by the company itself. Guidelines can be
changed without notice, and are superseded by a written contract.
- Your own notation on a manuscript indicating the rights you're offering.
- A verbal agreement. In theory, such agreements are binding -- but
they're hard to enforce in court. It's wise to back up any oral agreement
with, at the least, a memo or letter confirming the terms.
- An altered document that has not been co-signed or initialed by both
parties. (In other words, if you want to change a contract, you must
obtain the agreement of the publisher; it isn't enough to simply mark out
or revise unwanted clauses.)
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.]
Copyright © 2001 Moira Allen
- Model Contracts
Model contracts for author/agent, anthology, hardcover, magazine,
paperback, and web publishing.
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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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