An American Editor

May 7, 2012

The Business of Editing: Contracts — A Slippery Slope

When I first began editing as a freelancer, I never was offered a contract by a client. I was hired to copyedit or developmental edit, and it was understood that I would do my best and the client would pay me for my work. Even the structure for payment was understood to be what constituted a billable (i.e., hourly or a page, which consisted of x). It was a “handshake” agreement.

For the most part, even today, this is how I conduct much of my work. Yet, increasingly, I am being asked to sign a contract. This has occurred since the last time I addressed this issue, in Editors and Contracts: Editor Beware! In the prior article, I talked about a contract from India. Today, I am talking about a contract from the United States.

Because this is the “client’s” standard contract, I have to wonder how many editors either read the contract that is proffered or if they do read it, understand it; or if they simply sign it and consider doing so a necessity to have any business. I also wonder how many, if any, editors simply reject a burdensome contract.

As some of you know, my background is as a lawyer. Before becoming a professional editor, I practiced law for a number of years and learned early on in that career that business-to-business contracts really do need to be read and understood, and not just blindly signed.

The latest contract that I received simply reinforced that learning. It would almost be impossible to write a more one-sided and unfair contract short of one that says I would be responsible for the other party’s financial losses should the stock market decline for the next 100 years.

Good editors are language-smart, but sometimes not business-smart. Sometimes the need or desire to have work outweighs the common sense that dictates “do not sign the proffered contract.” But it shouldn’t, because some contracts are so exploitative that you have to wonder about the company that is proffering it. Would you trust the dog that bites the hand that feeds it?

Essentially that is what a contract is — an expression of distrust. The question is how much distrust is tolerable. I find that the more onerous the contract, which indicates that the offeror really distrusts the people with whom it “wants to work,” the less worthy the profferor is of being trusted. And thus I prefer not to sign.

Consider statements that say you will be paid “for satisfactorily rendered services.” What exactly does that mean? Who decides? How long do they have to decide? Is it satisfactory to leave “due to” in a manuscript? Is it satisfactory to not distinguish between “since” and “because”? Suppose you think a series of items should be a bulleted list rather than a run-on sentence. Is that okay?

What about a clause that says the client can audit your books? Are you an independent contractor or an employee?

Or consider the attorney-in-fact clause, which says that you appoint the client as attorney in fact to sign your name to any necessary applications for intellectual property protection for any reason. The only thing missed is taking possession of the bathtub.

One of the strongest methods to ensure payment is the availability of the lawsuit remedy. Yet the contracts insist that any claims be arbitrated and that doing so be at your expense. Back in the beginning of time, arbitrators had a reputation for lack of bias and for fairness; that reputation is long gone. I would be hard-pressed to voluntarily give up my right to sue.

The contract I was most recently offered also stated that my work product was a work for hire and that I waive any claim to ownership in my work product. Period. End of story. The waiver doesn’t come about because I have been paid or even because the client is obligated to pay me. No, it comes about because I unconditionally waive all my rights (which I’ll do immediately after the cheese the moon is made of is placed for sale in my local supermarket).

When you receive a contract to sign, do you look at the limitation of liability clause? You should. Invariably, the client has no liability. There is no mention of your not having any liability, which means that you might have some.

My favorite clause is the one that reads similar to this: “This agreement shall be interpreted as written and negotiated jointly by the parties.” Rarely is a client willing to negotiate any term of the proffered contract; it is a take-it-or-leave-it proposition. But this clause has a great deal of legal significance should a dispute arise.

Finally, I love when I get a contract that incorporates the material in an attached exhibit and the attached exhibit is not filled out. An early learned rule is never to sign a contract with blanks. Good luck proving it was incorrectly filled out after you signed, not before.

The list of objectionable clauses and why they are objectionable can go on, but simply listing them doesn’t answer the fundamental question: What can I, the editor who is offered such a contract, do about it? What should I do about it?

I usually send a note back saying I cannot agree to the contract as submitted and give reasons paragraph by paragraph. Usually there are a couple of unobjectionable paragraphs, but, for the most part, the more wrapped in legalese the contract is, the less likely I am to sign it.

I usually begin by noting that the contract has little relevancy to the services for which I am being hired. What relevance does a clause about patents have to copyediting? I suggest that, if a contract is necessary, we should discuss realistic terms that are relevant to what I am expected to do as an editor. I also make it clear that, contrary to the assertion in a contract, there are no universal, objective standards to which either party can look as measures of quality for editing, so it is necessary that client define precisely what standards the client will apply to my work product.

I go through this exercise knowing that it is futile; with rare exception, these contracts are nonnegotiable. But I want the client to understand that I do pay attention to detail, and this is a subtle way of enforcing that message.

In the end, it usually comes down to either signing the contract as submitted by the client or passing on the work. Given that choice, I decide how trustworthy I think the client is. If I think I can trust the client, I will sign the contract; if I have any doubts at all, I will not. There is little sense in inviting trouble.  Usually — but not always — my refusing to sign the contract means no work from the client. Several times in recent months, however, the client has simply worked with me as if nothing about a contract had ever been discussed. In these cases, the work with the client has been ongoing, not just a single project and then no more.

Regardless, editors need to be careful about the contracts they sign. It is better to not sign and lose the work than to work for a client whom you can’t trust. Just as you have a minimum acceptable fee for taking on work, so you should have a standard for contracts below which you will not descend. At the very least, never sign one before reading it carefully and assessing its potential impact on you and your business.

11 Comments »

  1. Interesting read. It occurred to me as I read your post that perhaps a good response to being offered an unacceptable contract is to have one of your own, that you offer them as a non negotiable contract….. Would that be a thought?

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    Comment by ebookano — May 7, 2012 @ 5:18 am | Reply

    • Many years ago, Tony, I did do that — when I was much younger and much brasher🙂. The problem is that then there is no way to ever get that company as a client. Although the odds are still against me when I simply refuse to sign a contract and explain why, I have occasionally still gained a long-term client without having to sign the contract. One other thing to keep in mind is that when you offer your own contract as a substitute, you need to be certain that the contract is both protective of you and enforceable, which means hiring an experienced lawyer at significant cost. (I’m lucky in that regard — I am a former practicing lawyer, my son is a lawyer, and my son-in-law is a lawyer so between the 3 of us, we can do a pretty good job.) I don’t think it is worth the effort when I know in advance that the corporate client is no more likely to sign my contract than I am to sign its contract.

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      Comment by americaneditor — May 7, 2012 @ 6:27 am | Reply

  2. I have a question actually. Can an edited paper be submitted for publishing if the edit fee has not been made?

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    Comment by jwmo — May 7, 2012 @ 6:57 am | Reply

    • I would say it depends on the laws governing contracts that apply in the particular case, but that generally, the answer is yes. However, it is the rare journal/publisher who will publish material that is subject to litigation.

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      Comment by americaneditor — May 7, 2012 @ 9:57 am | Reply

      • It can and often is, which is one reason to get at least some of your fee upfront as an advance or deposit before you start to work – you can do that with individuals, although usually not with companies, publishers or publications – and a reason to have something in writing that says the client may not use the material until the editor is paid.

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        Comment by Ruth E. Thaler-Carter — May 7, 2012 @ 11:32 am | Reply

  3. In a related vein, what about clients that ask for guarantees of editors’ or proofreaders’ work? It’s rarely happened to me, but I’ve seen questions about this from colleagues a few times. I would never offer a guarantee of perfection, especially if someone were to envision that as a form of contract – I’m really good, and I always catch things that amaze my clients, but even I’m not perfect, and I would never try to present myself as such.

    As for clients, I’ve had some clients who didn’t have them but have been fine with my presenting a letter of agreement that bullets out what I’m supposed to do, when, for how much, etc. I keep that conversation low-key and pleasant, rather than aggressive or arrogant, and point out that it protects both parties. I’ve only been ripped off a couple of times over the years, but even once was enough to feel better with something confirmed in writing before starting work with most of my clients.

    And yes, the one or two times I didn’t go over a client’s contract carefully are the only times a contract has been problematic. I have a good friend from high-school days who’s a lawyer and has been very generous about looking over anything I have questions about; it’s reassuring to know she’s in my corner as needed.

    FWIW, I’ve noticed that the clients with the most convoluted, restricted and one-sided contracts are often the ones with the smallest but most-headache-inducing projects!

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    Comment by Ruth E. Thaler-Carter — May 7, 2012 @ 7:26 am | Reply

    • I would think that a gurantee would be the subject of negotiation. Exactly what is being guaranteed and how much of a premium fee for that guarantee is the client willing to pay. I certainly would not outright exclude a guarantee, but it would be the subject of very intense negotiation, not just a causal acceptance, and it would require a significant fee premium. In addition, the “penalty” would have to be clear and doable.

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      Comment by americaneditor — May 7, 2012 @ 10:01 am | Reply

      • The problem with being asked for a guarantee, on either a formal or casual basis, is that even negotiating the terms would be difficult. How do we define perfection? The editor or proofreader could be penalized by a dollar amount per item/error missed, which would be identifiable if we’re talking about overlooking misspellings, missing or wrong punctuation, etc. – objective elements that can be clearly pinpointed as wrong – but what about items that are subjective?

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        Comment by Ruth E. Thaler-Carter — May 7, 2012 @ 11:35 am | Reply

        • Subjective items are not errors unless, for example, it is clearly specified that “since” and “because” are synonymous. I think any guarantee can only extend to objective items such as a clear direction that all numbers 1 to 99 are to be spelled out. I think it could be done, perhaps not easily, but then that is why there would need to be a premium price paid.

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          Comment by americaneditor — May 7, 2012 @ 12:24 pm | Reply

  4. […] the clauses have validity, others I wouldn’t sign regardless of the promised fee (see, e.g., The Business of Editing: Contracts — A Slippery Slope and Editors and Contracts: Editor Beware!). Recent discussions on various for a have focused on […]

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    Pingback by Business of Editing: Liability Insurance — Nyet | An American Editor — May 22, 2013 @ 4:01 am | Reply

  5. […] of the clauses have validity, others I wouldn’t sign regardless of the promised fee (see, e.g., The Business of Editing: Contracts — A Slippery Slope and Editors and Contracts: Editor Beware!). Recent discussions on various lists have focused on […]

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    Pingback by Business of Editing: Liability Insurance — Nyet | An American Editor | SCWilliam Insurance — May 23, 2013 @ 8:55 am | Reply


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