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.

May 2, 2012

The Tablet and Me: The Nook Tablet After a Couple of Weeks

A couple of weeks ago, my wife bought me a Nook Tablet. I related that experience, and my initial impressions, in The Tablet and Me: The Nook Tablet. Now that I have used the Tablet for a couple of weeks, I thought I would update my experience. (Note that I have not used or seen a Kindle Fire or Kobo Vox. Consequently, I cannot compare the Nook Tablet to either of those devices. My comments are not intended to imply that either the Fire or Vox cannot provide the same or similar experience. This is simply about my experience with the Nook Tablet.)

My primary ereading device has been my Sony 950, a 1.5-year-old eInk device that is no longer available except on the used market. My wife uses my Sony 505, which is now 4.5 years old, my original eInk device. Unlike the Sonys, the Tablet is an LCD screen, which means that it will be troublesome to read in sunlight and one does get some glare on the screen. There is no question in my mind that for straight reading of fiction, the eInk screen is more versatile at the moment.

But I have discovered something else — actually, several somethings else. First, contrary to my original thought that I would not like to read on a LCD screen after spending all day reading on LCD monitors, I actually do like reading on the Tablet. In many ways, I find it more enjoyable than reading on my Sony. This is possible because of the ease with which I can modify the screen brightness. Although I cannot literally mimic the eInk screen, I can make the contrast such that it is very comfortable to read for long periods.

Second, the Tablet weighs significantly more than the 950, although both are of the same 7-inch screen size. Add a cover, which I did, to the Tablet and the weight really climbs, or at least seems to when compared to the Sony 950. At first I thought I would find the weight annoying, but with use, I have found that I no longer notice it — unless I pick up my 950 between sessions with the Tablet.

Third, although both the 950 and the Tablet use touchscreen technology, the Tablet’s screen, when the device is off, really shows fingerprints (you don’t notice them when using the device). I find that I regularly am cleaning the Tablet’s screen. In contrast, the 950 doesn’t show the fingerprints and I clean the screen occasionally just because I know it needs it, not because I can see that it is needed. But the Tablet’s touchscreen technology is great. A very light, almost nonexistent tap on the screen changes the page; with the Sony, a swipe is needed.

Fourth is the excellent reading experience. I am slowly coming to prefer to read ebooks on the Tablet. Everything works to make my reading experience better. I can easily enlarge the font size, something I need to do as my eyes get older, and although I can also do the same on the 950, the Tablet gives me more choices.

The Tablet also gives me two other reading enhancements: the ability to select how the book should appear (e.g., narrow, wide, or very wide margins; and single, 1.5, and double line spacing; and whether the publisher’s default settings should be used or not) and the choice of typeface to display the material (e.g., Century School Book, Dutch, Georgia, Gill Sans). (There is also a “theme” option that lets me choose the background color.)

Overall, the control of the reading experience is much greater on the Tablet than on the 950 and the more I use the features of the Tablet, the more I am inclined for it to be my primary reading device.

Being an Android tablet, the Tablet also offers the kinds of features that would be found on more advanced tablets. I decided to try the apps feature. It comes with the Netflix app, so I entered my account information. I watched about 30 seconds of a movie just to try it. It works well and I can see possibly using it when I go on vacation. I bought a weather app (HD Weather, 99¢) so that I can get the local 5-day weather forecast.

That was pretty much it with the apps until about a week ago I decided to explore what apps are available. I found four that I grabbed immediately. The first is called The American Civil War Gazette (free). It provides daily newspaper articles from Northern and Southern newspapers regarding what was happening on the same date during the Civil War. It is a chance to relive the Civil War through the eyes of the newspapers of the time, day by day. A great app for anyone interested in the Civil War or just interested in trying to live history as if experiencing it personally.

The second app was Buddy Books (free). The app looks for ebooks available from B&N by category and/or price. I have played with it and it could be a better app, but it will certainly help me find ebooks when I’m ready to shop for them (which won’t be for a while; I have 200 ebooks in my Nook library already and hundreds more that I bought from Smashwords and Sony.)

The third app was the Smithsonian Channel (free). I am a long-time subscriber to Smithsonian magazine; I’ve been a subscriber since the 1980s and my current subscription runs through 2022. So I thought this would appeal to me. The app brings the Smithsonian Channel TV programs to the Tablet for free viewing at a time of my choosing. The problem is that I never watch TV and although I have the app, I still find I am disinclined to watch the TV programs. But you never know, and for free, I didn’t think I could go wrong.

The fourth app, is Audubon Birds (purchased for 99¢ on special sale; regularly $14.99). I bought this app for my wife who is a birder. It is the electronic version of the Audubon field guide and is absolutely wonderful. This app will get a lot of use. You can zoom in on the bird photos for more details; you can play their songs. It is packed with information that is easy to find and use.

As I wrote in the initial article on the Tablet, the Tablet was bought as a way for me to electronically read my daily New York Times. At first I thought that would likely be the limit of my use of the Tablet except when traveling. Even though I have had the Tablet for only a couple of weeks, I am finding that it is rapidly becoming my preferred ereading device, which is what I do 99% of the time I use the device. The Tablet has flaws, such as the need to clean the screen regularly, the glare/washout when used in the sun, and the inability to obtain Android apps from places other than B&N and install them, but I find these to ultimately be minor inconveniences the more I use the Tablet — especially when you consider the price I paid: $149 (for the 16GB Tablet) plus a 1-year subscription to the electronic edition of the New York Times.

If you are going to buy only one utilitarian device, I do not think you can go wrong buying the Nook Tablet.

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