This is an actual draft contract offered to a freelance writer who happens to be an E2 user. She has graciously allowed me to reproduce the draft at the very first stages of negotiation so you all can see what one might look like.
strikethrough were parts of the original contract offered by the publisher which were rejected by the writer. Sections in underscore are the writer's proposed changes.
This Author Agreement (the “Agreement”) is made as of ________ __, 2004, by and between Publisher, a division of Company, LLC, a Delaware limited liability company ("Publisher"), and Judy Freelancer, an individual ("Contractor").
In consideration of the mutual covenants herein contained, the parties hereby agree as follows:
1. Services. Contractor agrees to write original articles (each, an “Article”) for publication and/or distribution by Publisher, and to provide the services, if any, set forth below. Such services are hereinafter referred to as "Services." Other Services will include:
Reasonable rewrites to comply with editor’s comments. Up to two (2) re-writes.
2. Payment For Services.
a. Charges. As full compensation for the Services to be provided by Contractor, Publisher agrees to pay Contractor the sum of fifty dollars ($50.00) for each Article accepted by Publisher for publication.
b. Payment Schedule. Publisher will make payments on the 1st and 15th days of each calendar month for the previous 2-week period.
3. Independent Contractor. Contractor will perform the Services as an independent contractor. Contractor will not be deemed to be an employee of Publisher. Contractor will not be entitled to any employee benefits, and Publisher will make no deductions from any of the payments due to Contractor hereunder for state or federal tax purposes. Contractor will be personally responsible for any and all taxes and other payments due on payments received hereunder.
4. Original Development. Contractor warrants that all Articles and other Services will be original works of authorship of Contractor and will not infringe upon or violate any intellectual property right of any third party.
5. Rights to Articles.
All Articles accepted by Publisher will belong exclusively to Publisher and will, to the extent possible, be considered a work made for hire for Publisher within the meaning of Title 17 of the United States Code. To the extent Publisher does not own such Article as a work made for hire, Contractor hereby assigns to Publisher all copyright and other intellectual property rights to such Article. Contractor agrees to execute all documents reasonably requested by Publisher to further evidence the foregoing assignment and to provide all reasonable assistance to Publisher in perfecting or protecting Publisher's rights in such Article. The above fee licenses world wide web rights only. All other rights are fully reserved by the contractor and must be negotiated separately.
6. Other Agreements. Contractor may work on similar projects (including articles on the same topics as Articles submitted to Publisher) for other parties, provided that Contractor will not reprint, republish, or permit any third party to reprint or republish any Article submitted to Publisher without the prior written approval of Publisher.
Contractor will indemnify Publisher from all claims, losses, and damages which may arise from the breach of any of Contractor’s obligations under this Agreement.
8. Termination. This Agreement will continue until terminated by either party by written notice.
9. Subcontracting and Assignment. This Agreement and the rights and obligations of Contractor hereunder may be assigned or transferred by Publisher, in whole or in part in its sole discretion.
10. Governing Law; Jurisdiction. This contract will be governed by and construed in accordance with the laws of the State of California without regard to any principles of choice or conflicts of law.
11. Attorneys’ Fees and Costs. In any dispute concerning or arising under this Agreement or any transaction relating hereto, the prevailing party will be entitled to reasonable attorneys’ fees and costs, including, without limitation, costs and fees incurred on appeal or in a bankruptcy or similar action.
12. Entire Agreement. This Agreement constitutes the complete and exclusive statement of the agreement between the parties with regard to the matters set forth herein, and it supersedes all other agreements, proposals, and representations, oral or written, express or implied, with regard thereto.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year set forth above.
PUBLISHER, a division of Company, LLC
Dianne CrabbyEditor, Publisher
City, ST Zip
Social Security #
The primary objective of a contract is to get "the deal" in writing. The secondary objective is to deal with contingencies. In this case, the "deal" is: the writer will submit articles for a website, and the people who run the website will pay fifty dollars ($50) for the ones they like. That's pretty much covered in paragraphs 1 and 2.
So what's the rest of this all about? Mostly it's a matter of getting agreement in advance about contingencies, things that might come up, but often never do. The contingencies covered usually reflect the concerns of the party in the superior bargaining position. In a contract for services, that's the party with the cash. This contract is no exception.
The "deal" here is: I work, you pay me. Since that's kinda like an employment contract, the distinction must be made clear. The employer-employee relationship (or "Master/Servant" relationship, as many legal books so quaintly put it) has a lot of legal baggage that goes with it. Employers have to pay taxes and workers compensation insurance and generally take responsibility for employees: you can be held liable for the mistakes of your employees.
Independent contractors are consultants, freelancers, entrepreneurs, business owners. They pay their own taxes, keep their own place of business, and generally bring with them skills and tools to do a job. Wage and hour laws do not apply to them, nor can you (in most cases) be sued for something stupid or illegal that an independent contractor did. Thus, it is very much in this publisher's interest to make it clear that you, the writer, are an independent contractor.
No one in their right mind would confuse a freelance writer with an employee, so this paragraph can be mercifully short. Note, however, that lawyers write contracts to cover even insane contingencies.
If you were selling goods, this is the seller's warranties about the quality of the goods would go. The notion that writing should be "original" should not come as a surprise to E2 users.
"Rights to Articles"
After you have established that a publisher wants your stuff and how much they will pay —something that gets done before any contract is considered— this is where all the negotiation will happen. What work for hire means is beyond the scope of these comments, but essentially it means giving up all rights to the publisher. Note the counteroffer.
Here the "exclusivity" of the license gets spelled out. At minium, if you want someone to pay for your writing, you have to give them the right to use it. The next level is giving them the exclusive right to use it (as this contract does) and the most restrictive contract would give the publisher the exclusive right to everything you write (which this contract expressly does not do.
Other types of service contracts might include here a covenant not to compete. Competition is more of an issue when dealing with fungible goods and services, rather than unique creative works.
If we get sued by third parties, the writer has to deal with it. Our writer didn't like this clause, and it had to be negotiated later. Nobody likes being stuck with dealing with a lawsuit.
Lawyers think indemnification clauses are very important since, after all, lawsuits 'R us. In businesses where lawsuits are more frequent, a lawyer might propose a dispute resolution clause or a more restricted indemnification clause, for example, one which distinguishes between lawsuits which are my fault and lawsuits which are your fault.
Given the nature of this contract (they get to decide whether they want an article) the point of this clause is to allow for renegotiation of the $50 piece rate at any time.
"Subcontracting and Assignment"
This paragraph, as written, seemed to mangle the intent of the original draftsman, and needs work. It could have been intended to reserve the writer's right to subcontract the writing to someone else, and/or it could have been intended to reserve the publisher's right to assign publication rights, or both. For example, if the writer sold her United States print publication rights to the publisher, the publisher might want the right to "assign" (sell) those rights to a print publisher.
"Governing Law; Jurisdiction"
This is one of those things only lawyers care about. Choice of law can make a huge difference in sales contracts with consumers (consumer protection laws vary dramatically from place to place).
As a lawyer, I note that although the title of the paragraph says "jurisdiction", there's nothing in the contract about jurisdiction. A typical jurisdiction clause would say something like: "In the event of a dispute over this agreement, the parties agree to submit to the jurisdiction of the federal court of the Central District of California." That establishes personal jurisdiction and venue. These details are missing because, frankly, lawsuits are not a frequent occurrence in freelance writing, and the publisher just doesn't care.
"Attorney's Fees and Costs"
For reasons which should be obvious, lawyers like to put fee provisions in contracts, and sensible people like to take these clauses out. If you think you are going to have to sue the person you are contracting with, you might want something like this in the contract. If that's the case, though, the contract should probably contain "alternative dispute resolution" provisions, like an arbitration clause, to keep legal fees down. Otherwise, you're just asking for trouble.
This is called an "integration clause". It is intended to prevent people from saying, "they told me to just sign the contract and we would work out the details later", or "I know the contract doesn't say it, but the publisher promised to accept at least two articles a week from me".
In my experience, the clause never works. If you try to trick someone or defraud someone by making them sign something that does not reflect what you really promised them, a clause like this is NOT going to help you win. Conversely, if someone is going to sue you and insist there was side deal not contained in the contract, this clause is not going to stop them.
But hey, it makes the contract look really "legal", so why not? It's like the phrase which concludes this: "IN WITNESS WHEREOF" [sic] (should be "WHEREAS" or "IN WITNESS THEREOF"). You can say "WHEREAS mumble-mumble" or "SIGNED:" or whatever you want: no one is going to care.
If you need advice, see an attorney in your area; I'm not your lawyer; you'd have to be a complete idiot to think this writeup establishes an attorney-client relationship between you and me; but my malpractice insurer nonetheless wants to see disclaimers in everything legal I publish, so here it is (fuckers).