(The following essay was originally published on
An American Editor on May 7, 2012.)
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.
Richard Adin, An American Editor
An American Editor 