An American Editor

August 14, 2017

From the Archives: The Business of Editing: Contracts — A Slippery Slope

(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

11 Comments »

  1. Editors Canada publishes a standard freelance agreement that can be adapted to different jobs, along with Professional Editorial Standards that define the tasks covered by four disciplines: structural, stylistic, copy editing, and proofreading. As a lawyer, do you feel the agreement helps to protect editors? If a client offers a contract, would it benefit the editor to provide this agreement and note it in the client’s contract?
    http://www.editors.ca/hire/contract

    Like

    Comment by canadiancopychief — August 14, 2017 @ 7:02 am | Reply

    • I have not looked at the Editors Canada agreement so I cannot comment on it. However, it is likely an agreement used by a freelancer with an individual author client. The agreements I receive come from corporate clients, not individual authors. When I get a chance, I will look at the Editors Canada suggested agreement. But one other thing to keep in mind: the laws that will govern the client-editor relationship will differ country by country and in the U.S., state by state. That is why it is always important to specify what laws will govern the relationship when creating a formal contract.

      Liked by 1 person

      Comment by americaneditor — August 14, 2017 @ 12:11 pm | Reply

    • I have taken a look at the Editors Canada contract. I wish to emphasize that I am not familiar with Canadian law and thus cannot comment on whether the contract form is adequate or inadequate from a legal aspect. In addition, I am no longer a practicing attorney in the United States and thus cannot offer legal advice. What I am offering is my opinion based on my total work experience, especially my 33 years running my own editorial business. DO NOT view my comments as legal advice; consult your own lawyer for legal advice.

      I think the agreement is fine for a broad form and for as far as it goes. I would find it inadequate for my business; that is, it would be a good starting point but would require a number of additional clauses to meet my needs. One example would be a clause that gives me, the editor, a copyright interest in my edits until I was paid at which time my copyright interest would automatically expire and be transferred to the author/client. Another clause that I think is needed is one that states explicitly that editing is an art, not a science, and that matters of, for example, grammar and usage are subjective and not subject to rigid inviolable rules with the consequence that a grammar or usage disagreement is not a material breach. A third necessary clause, in my view, is that ultimate responsibility for the final text lies with the client as the client is free to accept or reject any or all of my editorial “suggestions”, including spelling, after I have turned over the edited material to the client. Among additional clauses needed address who is responsible for factual accuracy and whether time is of the essence. My list goes on but you have the idea.

      I think the Editors Canada agreement is an excellent starting point but not — for me — an ending point. If a contract is needed, then the contract needs to be comprehensive.

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      Comment by americaneditor — August 15, 2017 @ 3:19 am | Reply

      • Thank you for taking the time to review the agreement and produce a thoughtful response. You articulated the terms so well. May I share this with the association? They’re revising the document, and your suggestions are excellent.

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        Comment by canadiancopychief — August 15, 2017 @ 7:53 am | Reply

  2. P.S. I rarely use a contract, although I do spell out, in an email, the scope of work, deadlines, fee, and other terms. Clients seldom ask me to sign a formal contract—although they sometimes request blanket non-disclosure agreements—and so far I haven’t had any problems. I’m embarking on a new magazine project, don’t know if the client will request a formal contract, but your posts got me thinking.

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    Comment by canadiancopychief — August 14, 2017 @ 7:12 am | Reply

    • This is generally how things work with me. Of course, most of my clients are large publishers and very long-time clients (22-30 years), so there are some basic understandings. But I always restate my understanding of the terms of our relationship in an email. Always better to be safe than sorry.

      Liked by 1 person

      Comment by americaneditor — August 14, 2017 @ 12:06 pm | Reply

  3. A question just occurred to me. Why does the client think he or she needs such an abstruse contract? Really? What do they need to protect other than the possibility that we (the editors) might “steal” their ideas and claim them as our own? As you stated, we’re only offering editing suggestions; they’re under no obligation to accept them. We’re the ones who need the protection from unscrupulous clients who seem to want to pass off any potential legal responsibility onto the editor.

    For the lay person, reading a legal contract can be mind-boggling. Fortunately, I have a relative who’s an attorney that I’ve asked to review some contracts; after his review, I ultimately decided not to work with the client. They gave me a bad feeling anyway. However, if you don’t know an attorney you can informally consult, it might be possible to find a law student through the local university’s law school. Some larger cities have a lawyer referral network or low-cost legal aid clinic, and you might also be able to find resources through your local professional organization.

    Here’s a related article in the Harvard Business Review that also mentions contracts.

    https://hbr.org/2017/08/how-freelancers-can-make-sure-they-get-paid-on-time

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    Comment by Carla Lomax — August 15, 2017 @ 1:18 pm | Reply

    • Carla, the answer depends on who the client is. For example, a corporate client generally wants a contract so that it is firmly established that you are an independent contractor and not an employee. An IRS ruling that you are an employee can be very costly. Unfortunately, in the past some freelancers haven’t done very well financially and tried to claim employee status. A contract is one indicator of independent contractor status.

      Clients may also want a contract to limit their obligation to pay the editor or to establish ownership of the material. There are myriad reasons for wanting a contract, each being peculiar to the client and the client’s circumstances. There is nothing inherently wrong with a contract between editor and client. It is the contract terms that are problematic. For example, some contracts require the editor to have automobile insurance even though the editor will never step foot in the client’s offices.

      Also, I would add that just as there are unscrupulous clients, there are unscrupulous editors. In my experience, most clients and editors are scrupulous, but not all. This is especially true considering the ease of calling oneself an “editor”.

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      Comment by americaneditor — August 16, 2017 @ 2:58 am | Reply

  4. I’ve worked with some corporate clients who simply had me fill out the IRS Form 1099, rather than sign a specific contract. Terms of the project were usually spelled out in a letter or e-mail. I thought the 1099 form automatically designated you as the contractor.

    Yes, contract terms are excruciating. Too bad there’s no simple answer.

    Like

    Comment by Carla Lomax — August 18, 2017 @ 1:25 am | Reply


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