On the Crapification of Literary Contracts
I don’t want to pretend that freelance writing contracts were ever great, but in the 34 years since I sold my first short story — at 17 — I’ve observed firsthand how manifestly unfair contractual terms have become standard, and worse, non-negotiable.
I started selling to magazines back in 1980s, which were the the dawn of corporate publishing consolidation. Magazines changed owners frequently as they were snapped up by new owners who, in turn, merged or bought out their competitors (thank Ronald Reagan for neutering antitrust and allowing these mergers to be waved through).
Back then, it was an open secret that each batch of new corporate overlords would attempt to crapify the contracting terms the magazine imposed on its writers, and the editors would push back in subtle, clever ways.
There was the time that a major family of magazines was bought out by a corporate raider whose lawyers demanded that the contracts be amended to grab all kinds of nonstandard rights that writers had either retained and resold themselves, or that represented a fanciful kind of speculative ignorance about where the licensing opportunities were in short fiction.
These new contracts grabbed rights that writers were often able to resell for enough to buy a couple bags of groceries (audio, translation); rights that writers rarely sold, but which represented huge paydays when they did (TV and film adaptation); and rights that no one was buying or selling (theme-park and action-figure adaptations).
Demanding these rights was both outrageous and stupid, and everyone (except the corporate lawyers who insisted on them) knew it. In particular, the editors who acquired fiction for these magazines knew it, and they came up with a great solution to this idiocy: all the new contracting terms were relegated to the contract’s final page, and authors were quietly told that if they wanted, they could just tear that page off, sign the bottom of the penultimate page, and return the contract.
But as magazine publishing grew more concentrated, corporate contract lawyers were able to consolidate their control over operations, creating non-negotiable contracting terms that couldn’t be dispensed with by tearing off the final page — nor by lining out obnoxious clauses and initialing them.
In the years since, these awful terms have proliferated. It used to be that when an editor offered me a freelance assignment, the majority of our discussion would concern the substance of the article or story. Today, we spend ten or twenty times more energy on the contract, with the editor shuttling back and forth between me and the contracts people to see if they’ll flex, and, if so, how much.
I’ve learned the hard way that failing to do this can burn editors, which is the last thing I want to do. Back in 2009, an editor asked me if I’d write her a short story for a giant, global glossy general-interest magazine. She was an editor I’d worked with for years, and her berth at the magazine was a coup for her, a plum gig. The last thing I wanted to do was cause trouble for her. I promptly whipped up a story for her, and she loved it, and the magazine sent me a contract.
One of the clauses in this contract required me to indemnify the publisher against all claims, including those they settled without consulting me. In other words, if some crank emailed this magazine — which was distributed in dozens of countries around the world — and insisted I’d wronged them and demanded a million dollars in compensation, the magazine could pay them a million bucks and then send me the bill, without ever consulting me, irrespective of the merits of the complaint.
I did what I always do when a contract contains a clause like this: I amended it so that I would promise to indemnify them against “finally settled” claims in the US and the UK (the two legal systems I understood well enough to be able to promise that I wasn’t breaking any of their laws).
Normally, a publisher’s contracts lawyer would just accept a change like this and initial it and sign. Not this time. It went all the way to the CEO, who flat-out refused to okay the change. In the end, they told me they wouldn’t be publishing my story (and I wouldn’t be getting paid). This was outrageous, without precedent in my career and that of the editor, and in the end, my professional association had to intervene to get a 50 percent kill-fee out of the publisher.
This was idiotic. I have few assets to my name (and had even fewer back then). Not only wouldn’t I offer the publisher this indemnity — I couldn’t. Practically speaking, I was 99.99 percent certain that nothing I’d written contained anything actionable, but the publisher was reserving the right to settle claims that had no merit, and if I’d signed, I’d be contractually obligated to pay them back.
This is ridiculous. This was a multi-million-dollar enterprise with offices all around the world, and access to legal advice for each of the jurisdictions in which it published. If the company was actually worried about legal exposure due to my work, the prudent course of action would be to consult competent counsel — not ask someone with no relevant legal experience to promise them it would all be fine, especially when that person had no assets that could be used to back up that promise. Signing that clause would give the publisher the right to ruin my life — but it still wouldn’t protect the publisher from any liability.
My assumption that the publisher would offer me a reasonable contract put my editor friend in a very awkward position and strained our professional relationship. I got more cautious, but I still slipped up.
Last year, a major daily national US newspaper asked me to write an op-ed about a litigious, sleazy, vindictive tech company’s stupid legal threats. I did, and they published it, and then they sent me the contract, which asked me to indemnify them against all claims, regardless of merit.
I told them I wouldn’t sign it. I’m not an idiot. They’d asked me to write about a billion-dollar company with a history of vindictive legal threats against its critics and then, after the fact, they wanted me to promise them that if they got a legal threat as a result, I’d take care of it?
I mean, even if they’d been paying me more than the couple hundred bucks I got as a result, I wouldn’t have signed it. They’re the publisher with offices all around the world and a whole floor full of media lawyers. Why on Earth would I agree to serve as a litigation target?
The contracts person was distraught, and for good reason. They’d been told by management that the clause I was objecting to was non-negotiable. I pointed out that they’d already published the work and were in no position to force unreasonable terms on me. Given that they’d published ahead of a signed contract, I was within my rights to offer them a contract and insist that they sign it. All I was asking for was a fair and reasonable deal.
The story had a happy ending — I got the offending, “non-negotiable” clause struck — but once again, I put an editor who liked my work and asked for my contribution in good faith in a bind and needlessly burned a bridge. It was another reminder that I shouldn’t accept any commissions without clarifying the contractual terms in advance.
These days, I’m more careful. Editors change jobs, after all, and even if unreasonable contracting terms mean I can’t work them them in their current berths, clearly expressing my contractual limits means that we can avoid the pain and trouble of working on a piece we both want to see published, only to have it killed by unreasonable contracting terms.
Here are some of the contracting terms that come up again and again:
- Binding arbitration waivers. These are contractual terms that prohibit me from suing the publisher, no matter how egregiously they behave. Instead, these clauses would require me to present my case to a fake judge — a corporate arbitrator whose fees are paid by the publisher I’m seeking to hold to account — and cross my fingers. Binding arbitration was invented to help giant corporations of similar size avoid costly litigation, but Federalist Society judges like Antonin Scalia broadened arbitration doctrine so that today, it is primarily used by powerful corporations to deprive workers, customers and suppliers of the rights they are otherwise entitled to. There is no good reason for a company to insist on these waivers. Their primary use is to allow companies to rip you off and get away with it. I won’t sign them, and honestly, shame on you for even asking.
- Blanket warranties. Freelance writers aren’t (usually) lawyers. It’s one thing to ask a writer to say that “to the best of their knowledge” their work doesn’t infringe on anyone else’s rights. But it’s another thing to make them guarantee it, especially when a publisher is part of a multinational conglomerate with legal exposure all over the world. I can promise you that my work doesn’t violate US federal laws or California state laws, but only the publisher is in a position to know what other legal systems it is exposed to. If you’ve got a branch office in Thailand or the UAE or Saudi Arabia, I’m pretty sure that anything of mine you publish will expose you to legal liability there —and if you’re worried about that you need to talk to a lawyer in Bangkok or Riyadh or Dubai, not a writer in Burbank.
- Blanket indemnities. My insurance underwriter’s been clear on this: they will not cover settlements that a publisher has unilaterally offered without a court ruling. Given that I have no substantial assets, I can’t indemnify publishers for claims that my insurer won’t cover. I can indemnify you against finally settled claims in California or a US federal court — otherwise, I suggest you check with your own insurer, rather than trying to contain your risk by putting me on the hook for it. Not only is that grossly unfair, it’s also pointless, since forcing me into bankruptcy won’t actually get you the money you need to settle a big claim — it’ll just ruin my life.
- Confidentiality. In more than three decades of freelance writing, I have almost never been exposed to a publisher’s confidential commercial information. Still, it has happened. If your company plans on telling me its secrets and wants to be sure I’ll keep them, then fine, we can have some kind of nondisclosure, but you need to precisely and narrowly define what constitutes “confidential” information (and no, I can’t do that because if I knew what your secrets were, they wouldn’t be secrets).
- Noncompete. If you’re commissioning a major feature on a new subject from me, then fine, I can see signing up to a limited noncompete — a few months, or maybe a year, when I promise not to write on the same subject. But if you’re commissioning me to write on the subjects I’m an expert in, which I write about every single day? No way. I mean, come on.
- Rights. For magazines and online publications, the standard deal is a limited exclusive publication right (six months or a year, say) and thereafter, a perpetual, nonexclusive right. That is, you can keep it on your website, but I can resell it, adapt it, or anthologize it.
- Derivative works. If you want TV or film rights, that’s fine, but you’ll have to negotiate them with my agent at WME, and there will be a substantial payment, and you’ll only get an option, not a buyout. Other rights — translation and conversion to other formats — are okay, provided you actually plan on using them (I won’t give you the French rights if you have no French sister publications or relationships with French publishers — why would you even want those rights?).
This is basically the shape of a standard contract from the start of my career, but it’s miles away from the boilerplate nearly every publisher uses today. It represents a fair deal — one in which risks and rewards are apportioned based on the relative contributions and capacities of both of the parties.
A well-written contract is a thing of beauty — a way for all concerned to concisely and clearly express what they expect of one another. It makes no sense for a contracts lawyer to insist that a clause remain in a contract even though they would “never invoke it.”
I take this contract seriously, and plan to live up to my end. If there’s something in it I can’t or won’t do, I shouldn’t sign it.
That’s what every writer owes every publisher: a truthful and complete account of what they plan to do for the money on offer.
It’s a weird world when writers take publishers’ contracts more seriously than the publishers do.