On the Basics: Putting it in writing

© Ruth E. Thaler-Carter, Owner

An American Editor

© An American Editor. Content may not be recirculated, republished or otherwise used without both the prior permission of the publisher and full credit to the author of a given post and the An American Editor blog, including a live link to the post being referenced. Thank you for respecting our rights to and ownership of our work.

Note: The author is not an attorney and this article does not constitute legal advice.

It comes up so often in various places: Do editors (or any publishing pros) need contracts with clients? This is especially relevant for freelance editors and proofreaders who work directly with individual authors, whether academics seeking help with their dissertations or people writing books to be self-published, although some who aim for — or even have contracts for — traditional publishing might seek editors or proofreaders on their own.

There are two reasons for that: Aspiring authors are often savvy enough to get their manuscripts edited before submitting their work to agents or publishers, and, as most of us know, publishing houses are cutting back on in-house editors and putting the onus of that quality control step on authors. (Both of those instances create more opportunities for freelancers, but that’s another essay topic.)

As I said recently in an online conversation, it’s definitely smart to have a contract. I do know colleagues who have worked without one and never had a problem. That’s great, and I’m glad for them — but still no reason not to have a contract.

Some clients will already have a contract for you to sign; it’s when they don’t that we should all consider having our own, ready to use.

The purpose of a contract is to protect both parties, not just yourself. On your behalf, a contract spells out what you will do, when, for how much, etc. That protects you against any misunderstanding about your role or being asked to do work you weren’t expecting, or being paid, to do. For your client, a contract formalizes what they can expect from you and gives them a basis to trust that you will do what they expect and you promise. Keep that mutual benefit in mind if you venture into using a contract for the first time and/or encounter a new client at any point who resists the idea.

Contract elements

A contract of your own doesn’t have to be complicated, lengthy or packed with legalese. It doesn’t even have to involve an attorney.

I keep a list of items that are almost always, if not always, elements of a project. It’s easy to adapt the list to a new client or project as a contract.

Essentially, bullet out what you will do for an average project: type of work (level of edit, proofread, write, index, etc.; number of words for a writing assignment, items for an index, illustrations for book or other graphics project, etc.), schedule or timeframe and fee for each task, deadline(s), anticipated expenses for reimbursement (such as mileage cost — I charge either mileage or time traveling and meeting, not both — or supplies, software versions, etc.), number of passes for editing or revisions for writing and illustrations, language to protect against scope creep, copyright, phone call or e-mail message policy, median policy, etc.

When I was doing onsite conference reporting, I would ask that the client purchase the plane ticket and put hotel accommodations on their account, so I didn’t have to use my own money and wait to be reimbursed. That would be in our contract or agreement.

State when payment is due and; the standard is within 30 days of invoice date. Many clients will pay sooner than that, although some might pay later — you need to establish that so you can budget accordingly. I don’t like 45- or 60-day payment schedules, but I can handle them if I know that’s the client’s policy before I accept the project. Although my contracts say that payment is due upon receipt of invoice, and invoices say “Payable upon receipt,” I assume I won’t be paid until those 30 days elapse, so anything before that is a pleasant surprise.  

Include a late fee policy.

For large or ongoing projects, your contract can ask for an advance or retainer, if you think that will be acceptable to the client, and include an interim payment process: an advance or deposit, with payments at specific points (such as number of hours or pages), and whether payment will be made before you hand off the finished project. Be prepared for publishers, publications, organizations, business, etc., not to accept such arrangements, but individual authors are often, if not usually, amenable to doing so.

Your contract can state that copyright for the edited or proofed version of a client’s document remains with you until you’ve been paid in full. That’s most likely to be effective (and sometimes necessary) with independent authors, but Rich Adin, founder of the An American Editor blog, was able to use that policy with major publishers that were paying very, very slowly for his work.

In the light of legislation that is encouraging employers to force their freelancers into becoming employees, you also might want to include language in a contract about your status as a freelancer or contractor.

Your contract can state how you prefer to be paid (check, PayPal or banking apps like Zelle and Square, direct deposit to your bank account, etc.).

It’s quite possible that once you’ve created your checklist, projects will come along that require adding new items to it. The checklist is simply a template or starting point. You will probably have to tailor it to every client and project that comes along.

What not to include

I don’t charge for paper, ink, software or hardware, because those are my costs of doing business and my fees or rates should be enough to cover those expenses. However, colleagues who are expected to print manuscripts of a couple hundred pages, especially in color, might want to be reimbursed for the impact of that on printer toner or copier ink. I would definitely include reimbursement shipping/delivery for sending back a marked-up manuscript, or ask to use the client’s FedEx/UPS account.

You probably don’t have to include charges for long-distance phone calls, since so much of our work these days is via e-mail and other electronic mechanisms.

When to say no

Keep in mind that non-individuals such as publishing houses and businesses often have their own contracts that we have to accept if we want the work. Some are straightforward, some are complex, some are downright draconian, some are negotiable — you can delete, or ask to delete, clauses that don’t make sense.

One such item that comes up a lot these days involves insurance. If the client usually hires contractors with their own employees who work at the client’s jobsite or other location and operate vehicles or equipment on behalf of the client, they might have a standard contract that requires a level of liability insurance that isn’t essential or even appropriate for a freelance editor, proofreader, writer, designer, photographer, etc. That happens when it’s the first time the client has used a freelancer.

I once turned down a dream writing and editing project because the contract would have created an unreasonable onus of responsibility for things beyond my control: It called for my role to have legal liability for any and all errors in the published work — when others could make changes to what I submitted, without my knowledge. I’m fine with taking responsibility for the accuracy and quality of my work, but I can’t accept responsibility for what someone else does to it after it leaves my hands.

My approach to contracts

After establishing project details with the client, I “Save As” my checklist, rename and adjust it as needed, and send it back attached to an e-mail message with a cover note along the lines of “Per our discussion(s), the attached document will serve as our letter of agreement/contract.”

For the clients who pay me by the hour, I use a very basic Excel worksheet with a column for date, task, hourly rate and percentage of an hour/hours per task; Excel handles the percentages and adds up the hours/dollars for me. Each month, I do Save As to create a new log or tracking document for the new month for each client. (I’ve found that the key is to remember to enter every project for a given client as soon as I finish it, rather than wait until end of the month to enter anything, or I forget half of them.) That log goes with the invoice.

There are lots of contract and invoice templates all over the Internet, including in Word and from various professional associations. An excellent book about contracts is The Paper It’s Written On: Defining Your Relationship with an Editing Client by Karin Cather and Dick Margulis — they wrote it for editors, but most of it can be applied to almost anyone with an independent business.

When has a contract, or lack of one, become an issue for you? How did you handle it?

Ruth E. Thaler-Carter (www.writerruth.com) is an award-winning provider of editorial and publishing services for publications, independent authors, publishers, associations, nonprofits and companies worldwide, and the editor-in-chief and owner of An American Editor. She created the annual Communication Central Be a Better Freelancer^® conference for colleagues (www.communication-central.com), now co-hosted with the National Association of Independent Writers and Editors (www.naiwe.com) and sponsored by An American Editor. She also owns A Flair for Writing (www.aflairforwriting.com), which helps independent authors produce and publish their books. She can be reached at Ruth@writerruth.com or Ruth.Thaler-Carter@AnAmericanEditor.com.

Advertisement

On the Basics — Contract tips for freelancers

Ruth E. Thaler-Carter, Owner

An American Editor

Please do not share or reprint without prior permission from and credit to the author

 and owner of An American Editor.

One of my local professional groups recently held a session about contracts for editorial work that I couldn’t attend, so I put together a few suggestions that colleagues could use despite my absence. I ended up expanding those tips into this column.

Many freelancers work for years without contracts and have no problems. Others need a contract from their first client and day in business, while still others only need a contract once in awhile. Because we never know what could arise, it’s a good business practice to have your own version of a project contract, just in case. If a client offers a contract, read it carefully (especially if it’s full of legalese) before signing it, and make sure you understand everything you’re committing to. If a client doesn’t have a contract, ask them to sign your own. If they hesitate, assure the client that it doesn’t imply distrust but protects both you and them. You can also use the language “letter of agreement,” which can sound less scary or off-putting than “contract.”

You don’t have to hire a lawyer to produce a contract. Professional associations and online services provide templates that you can tailor to your business or assignments/projects (see below).

What you don’t need

Check every contract offered to make sure you don’t accept anything that works against you, such as an unnecessary liability clause.

If a contract includes a liability clause, be aware that most freelancers do not need liability or accident coverage. That’s usually boilerplate language that relates to large contractors or subcontractors working onsite at a client’s facility or operating heavy/dangerous equipment on behalf of the client. In some states or municipalities, freelancers can’t even get liability insurance. You can usually ask to delete such a clause from a contract, but if the client insists and you want the job, add the cost to your fee. Most of us also don’t have clients coming to our home offices, or employees, subcontractors or vendors at our locations, so we don’t need that kind of liability coverage. You should have homeowner’s or renter’s insurance, and added coverage for your work-related equipment, furnishings and supplies, but that would be about it.

A liability clause that says you’re responsible for anything that goes wrong with an editorial project is bad news. We rarely have control over what happens to a document once we finish writing, editing or proofreading it; other people in the publishing process can introduce errors, change quotes, leave out important details, add new but inaccurate information, etc. Don’t be bullied into saying you accept responsibility for the published version of something if you aren’t in total control of the material. You don’t want to be sued for something done by someone else.

Items to include

Start a checklist as a template for the contract elements you want to remember to include in any given project. Try to think of everything that could possibly be part of any project — hope for the best, but assume the worst. You can save it as Contract-Project X every time something new comes in and then tailor that version by deleting items that don’t apply to the specific project or assignment, but the template will ensure that you don’t leave out a crucial item that could cost you money or create other issues.

These are the minimum items to include in your contract template:

√ Nature/Type of assignment (writing, editing, proofreading, indexing, layout, etc.)

√ Scope (number of words, pages, hours, etc.; number of passes; whether fact-checking or plagiarism-checking are expected)

√ Pay rate or amount (by the word, hour, page, project, etc.); if by the page, define page

√ Deadline

√ Expenses covered/receipts required

√ Revisions

√ Protection against scope creep (spell out extra payments to be made if work goes over agreed scope)

√ Copyright/Rights/Ownership

√ Credit (work-for-hire projects generally don’t give you a byline or publication credit; editors and proofreaders often do not get credit, although you can always ask to be named)

√ Payment timing (on acceptance, on publication, X number of days after invoice)

√ Payment method (check, direct deposit, PayPal/credit card, etc.)

√ Late fee (charge to client if payment doesn’t arrive by X days after invoice date)

√ Kill fee (percentage of fee you receive if assignment is canceled for reasons beyond your control)

√ Format or program (Word, Google Docs, Pages, PDF, PowerPoint, Excel, InDesign, InCopy, etc.)

√ Confidentiality

√ Subcontracting (some clients will not accept having subcontractors work with you)

√ Complimentary copies

√ Permission to list or link projects/clients on your website

√ Emergency contact/process (in case something happens to you or the client, or the client’s client, that could affect being able to finish the project)

√Dispute jurisdiction/Mediation option

Adjustments over time

• Contracts can be evolving documents; you can add new items to your template that arise with any new contract of project. There’s often something you never thought of. On my first freelance newsletter contract, for instance, I included managing printing and mailing in what I would provide, but didn’t realize the client would read that item as included in what I would provide. Guess who had to pay for printing and mailing.  

Some editing and proofreading clients might expect or request guarantees of perfection or a specific percentage of perfection. Try not to be tied to such demands, which are usually impossible to meet, or to be bullied into a refund for any errors you might miss.

Resources to consult

√ The Paper It’s Written On: Defining your relationship with an editing client by Dick Margulis and Karin Cather; despite the subtitle, it can be used for all kinds of editorial projects (and is an excellent example of how a presentation can turn into a profit center; the book grew out a presentation by the authors at a Communication Center “Be a Better Freelancer”® conference)

√ Professional associations for samples or templates, as well as advice about creating or responding to contracts (Editorial Freelancers Association (EFA) sample agreement for services: https://www.the-efa.org/resources/; Editors Canada contract template: https://www.editors.ca/hire/agreement-template-editing-services)

√ Websites for legal services, including contract samples or templates, such as LegalZoom.com and Nolo.com

√ An attorney (local bar associations can provide names)

√ Lawyers for the Arts (local chapters)

What other contract terms or items would you add to a template? What kinds of contract headaches have you experienced, and how did you resolve them?

Ruth E. Thaler-Carter (www.writerruth.com) is an award-winning provider of editorial and publishing services for publications, independent authors, publishers, associations, nonprofits and companies worldwide, and the editor-in-chief and owner of An American Editor. She created the annual Communication Central Be a Better Freelancer^® conference for colleagues (www.communication-central.com), now co-hosted with the National Association of Independent Writers and Editors (www.naiwe.com) and sponsored by An American Editor. She also owns A Flair for Writing (www.aflairforwriting.com), which helps independent authors produce and publish their books. She can be reached at Ruth@writerruth.com or Ruth.Thaler-Carter@AnAmericanEditor.com.

© An American Editor. Content may not be recirculated, republished or otherwise used without both the prior permission of the publisher and full credit to the author of a given post and the An American Editor blog, including a live link to the post being referenced. Thank you for respecting our rights to and ownership of our work.

Lazy Writing, Part 2 — Something to Combat, but Sometimes Appreciate

By Carolyn Haley

For Part 1 of this article, go to https://americaneditor.wordpress.com/2019/02/15/thinking-fiction-lazy-writing-part-1-something-to-combat-but-sometimes-appreciate/

Extra padding

Sometimes lazy writing involves using more words than needed. Characters give a sigh or give a wink instead of just sighing or winking. They make their way somewhere instead of walking, driving, climbing, wending, etc. They have a feeling of dread about something instead of dreading it, or haven’t seen someone for a while instead of for hours, days, weeks, months, or years. Readers soon get tired of such lazy usage and yearn for some brevity and specificity.

The same effect occurs with over-creativity, by which I mean referring to a character in too many ways. Joe might be a short guy with black hair who is also a police officer in Chicago. As paragraphs about his action go by, he’s referred to as Joe, the short man, the black-haired fighter, the cop, and the Chicagoan. In trying to avoid repetition, the author ends up confusing the reader by introducing too many variables. This tends to happen in action novels, where a character is lightly sketched at first appearance and never developed to the point of being easily recognizable later. Such variability again makes the reader have to work hard to keep track of who’s who.

Loose ends

The most common lazy writing I encounter is false suspense, although this is a result less of laziness than ignorance. It usually occurs in a first novel, when the author doesn’t yet understand the difference between suspense that generates the “What happens next?” question and suspense that generates the “What’s going on?” question.

I recently challenged a client about why he kept starting new chapters in new places and times without telling us who was talking or where/when they were. That information came several paragraphs or even pages into the chapter. He said he liked dropping readers straight into the action. That’s fine if readers can follow the logic leap. If not, it’s a head-scratcher that is certain to leave readers impatient and confused.

Lazy writing occurs also in matters of verisimilitude. When writers get carried away with the excitement of their story and don’t later verify facts and logistics, it falls on the editor to burst their balloon by pointing out that a scene can’t happen the way it’s described.

Most such bloopers are easy fixes, such as adjusting the scene to account for moonlight (or lack of), or whether it’s possible to maneuver with bodies lying around underfoot, or how a specified gun type might behave, or accounting for vehicles left crashed in the middle of the road when the hero then zooms down said road unimpeded. Sometimes a technical blooper might require a major recast of scene or even storyline; but, thankfully for both writers and editors, bloopers usually are of the “duh” type, such as cigarettes lit but never put out (or smoked in 30 seconds or 30 minutes), or the consequences of a major wound (people who don’t bleed, or continue running around when they’ve had a lung shot out), and the like. Fixing those items doesn’t require revising the whole book.

The subjectivity factor

The laziest of lazy writing, in my passionate opinion, is the cliffhanger, be it the ending of a scene, a chapter, or an entire book. I acknowledge that this can be a matter of taste, and I struggle with determining whether that’s truly the case or if the story is hurting itself by using that device. How to respond to cliffhangers is, perhaps, the most difficult decision I must make as an editor. Do I let it go, or flag it as a criticism or item for discussion? As a recreational reader on my own time, cliffhangers inspire me to simply toss a book over my shoulder, but as a professional editor, I can’t do that.

Cliffhangers strike me as a cheap shot, as manipulative, as author intrusion into a story. They occur most often in series novels, used as an attempt to bribe readers into reading the next book. I consider cliffhanging a lazy technique because, as a reader, I want resolution. I am willing to keep turning pages if the author keeps the suspense and interest mounting, but I don’t need to be compelled to continue by force. I want closure of the individual volume’s story with promise of more to come, not major components left dangling to provoke me into reading the next book.

As with almost everything relating to writing and editing novels, subjectivity is a big factor. My job as an editor is to inform an author about any spot where other readers might bark their shins. It’s up to the author to decide whether those places are things they want to think about and change.

If the author chooses to let an issue stand, I’m fine with that. I care only that they make an informed choice. The marketplace will decide whether it’s the right choice. Most of us know that you can’t please everyone, and the author’s goal is to connect with the audience who wants to read their stuff. My job as an editor is to help them achieve that end.

The editor’s role

It’s a rare editor who doesn’t encounter lazy writing during their career. Those who work with indie authors, especially new ones, encounter it often. Tolerance for editing lazy writing should be considered when deciding what kind of editorial work to do for a living. That tolerance level also an important component of structuring contracts — defining exactly what the editor is going to do to the client’s manuscript is essential to a good working relationship.

If you have the heart and soul of a developmental editor, and you find clients willing to pay the cost, then you can dive into someone’s early work and help them avoid symptoms of lazy writing. This not only gives you job satisfaction, but also helps line and copy editors down the road, who might not be developmentally inclined and have a harder time sorting out the material, defining the boundaries of their work, and helping their clients.

Line and copy editors do sometimes have to deal with un-developmentally-edited texts, because their clients are unwilling or unable to pay for the higher level of edit that would catch and help the author fix instances of lazy writing. In all cases, no matter what level of editing is involved, editors have to define terms and expectations carefully in the work they propose to provide. Copy editors are generally limited to making comments and queries instead of rephrasing, and both editor and author might end up tearing their hair out if the “edited” manuscript is overloaded with changes and queries attacking the text when that’s not part of the agreed-upon scope of work. A client expecting the mechanical focus of copyediting might not be open to the heavy hits on their prose by an editor who recognizes lazy writing and tries to improve it, while a client expecting deep involvement in their prose might feel cheated if all they get are mechanical edits.

Appreciating the lazy …

Over the years, I’ve come to appreciate lazy writing. It forces me to concentrate on a story and think hard about the details, get engrossed in the characters, take the author seriously. Addressing the questions that lazy writing triggers and talking with the author about them brings out the best of our relationship, letting us blend the artistic and analytical elements that bring out the best of the work. Ultimately, we all — author, editor, and the story itself — end up more muscular and vibrant. How can that not result in a better book?

Carolyn Haley, an award-winning novelist, lives and breathes novels. Although specializing in fiction, she edits across the publishing spectrum — fiction and nonfiction, corporate and indie — and is the author of two novels and a nonfiction book. She has been editing professionally since 1977, and has had her own editorial services company, DocuMania, since 2005. She can be reached at dcma@vermontel.com or through her websites, DocuMania and New Ways to See the World. Carolyn also blogs at Adventures in Zone 3 and reviews at New York Journal of Books, and has presented on editing fiction at the Communication Central conference.

From the Archives: The Editor’s Interest: Copyright or Not

(The following essay was originally published on
An American Editor on March 1, 2011. The addendum
was added and published on August 30, 2017.)

A question that sometimes arises, usually when an editor has difficulty getting paid for his or her work, is: What can the editor do to collect payment? I’ve been a long-time advocate of the position that the editor has a copyright interest in the edited version of the manuscript, a card that the editor should play in payment disputes.

We need to step back a little. First, if you are an editor and have a written contract governing the relationship between you and the client, unless the contract specifically provides for your copyright interest, you don’t have one — your relationship is governed by the four corners of the written contract.

Second, the law is unsettled, not clear, or whatever other description you want (muddy, perhaps?) as regards an editor’s interest in the edited manuscript.

Third, the editor’s interest I advocate extends only to the edited version. The author and/or publisher have an unencumbered copyright interest in the original manuscript the editor received; it is only the editor’s edited version in which the editor has an interest — and that interest is wholly extinguished upon being paid in full (i.e., the check has cleared, not the check has been received).

As you can see, I am talking about a narrow interest, not the broader interest that an author has in the manuscript. This narrower interest can readily be extinguished in two ways: (1) payment for service in full or (2) wholesale rejection of the edited manuscript. Acceptance of even a single comma, or corrected spelling — that is, of any single edit — is, in my view sufficient to retain the editor’s interest.

Here is where opinions begin to scatter. I have been told by lawyers for one major publisher that I do not have such an interest. It was a great thrust to the heart by the publisher but, alas, it missed. If lawyers scare you, then this isn’t the position to take. But if you have some titanium backbone, the response is (and the one I made)

I am willing to find out in a court of law. Are you willing to take the chance that the court sides with me, because if you are and if you lose, you will make life exceedingly difficult for your publisher client. Isn’t it smarter to simply pay my bill?

The reality is that it is smarter to pay my bill and not hire me again. It is unlikely that what is owed me is such a large amount of money that the risk of losing in court is worth taking.

Of course, there are steps that should be taken when using this collection method. You should send both an e-mail and a certified-mail return-receipt letter to the client notifying the client of your interest and demanding that they either pay your invoice in full immediately (be sure to give a specific payment date) or

• not publish the edited manuscript;
• if they publish the manuscript, that they not sell any copies or distribute any copies;
• if they sell or distribute any copies, that they place 100% of all receipts in a trust fund pending outcome of litigation;
• and that they notify the author(s) in writing that you are claiming a copyright interest in the edited version of the manuscript because of the client’s failure to pay for your services, which payment would extinguish your copyright interest.

You’d be surprised at how much influence a screaming author can have, especially if the author liked your work! If you know how to contact the author, you should send a copy of the e-mail and letter directly to the author as well as to the publisher.

Alright, I admit we haven’t yet determined how valid the editor’s claimed copyright interest is, but I’m not sure it is possible to determine its validity in the absence of a major court’s definitive decision (lower court decisions have little precedential value, just witness the 5 decisions on Obamacare). Because it is an open question, I see no problem in making the claim. Personally, I see no problem in defending the claim, either.

A court decision adverse to a publisher and in favor of an editor on this could have significant ramifications for publishers. It would add pressure to pay on time because an editor could prevent release of the manuscript in its edited form. Of course, it could also encourage publishers to add editing to the list of items to be bypassed in the book production process, but doing so would remove one of the few remaining justifications for traditional publishing.

The most likely result would be the influx of contracts. Today, most publishers still work on the handshake basis; that is, they contact an editor and ask if the editor is available, tell the editor what is wanted, and send the manuscript for editing. Sometimes a purchase order is included. In return, the editor edits the manuscript, returns it with an invoice, and receives timely payment. Welcome to the world of 99% of publishers and editors.

The problem is the 1% with whom a handshake is like striking a bargain with the devil who has its fingers crossed behind its back. They promise payment in 30 days and then when the work is done tell you it will be 6 months. Or they tell you how much they love your work until the invoice arrives, at which point they tell you how bad your work is and want you to reduce the invoice. Or they tell you the manuscript is 250 pages and only requires a very light edit when the reality is it is a 400-page manuscript that requires a very heavy edit because the author’s English language skills are virtually nonexistent.

With the 99% of clients a contract or a handshake means the same thing and either will work. With these clients the issue of the editor’s copyright interest never arises. Even if they hate your work, they will pay your invoice on time and just not call again. Paying your invoice costs less than 2 hours of attorney time, so business sense dictates payment.

With the 1% of clients neither a contract nor a handshake has any meaning. It is with these clients that one must be prepared to use the complete arsenal available to collect for work done. Unfortunately, we often don’t discover that a client is part of the 1% until the work is done (perhaps a particularly good reason to bill and get paid in instalments), at which time the 1-percenter thinks we are over the barrel. It is with these clients that the copyright claim is most effective and should be invoked.

Do editors have a copyright interest in the edited version of the manuscript? Maybe, maybe not, but it is a weapon in the editor’s collection arsenal that should not be ignored.

[Addendum added August 30, 2017: If you have a contract with a client that specifically states that you retain a copyright interest until paid in full, that clause is enforceable under contract law — it is no longer a copyright question. Copyrights are transferable and saleable property. Recall that in olden days, by contract, authors assigned copyright to publishers or movie studios or record companies and it was the publisher, the movie studio, the record company that enforced copyright. The change — that is, the author keeping copyright — began in the late 1960s and became standard in the 1990s. However, authors are still free to assign copyright as they wish via contract.

The main essay above focuses on those instances where there is no contractual provision assigning copyright pending payment to the editor. Best practice is to include a clause in your written contract as there is no question about the enforceability of such a clause.]

Richard Adin, An American Editor

From the Archives: The Business of Editing: Noncompetition Agreements

(The following essay was originally published on
 An American Editor on January 29, 2014.)

As I have discussed in the past, I rarely am asked to sign a contract. Yet lately it seems that an increasing number of packagers are asking for contracts. The terms are one-sided and onerous, and in some cases want me to agree to be bound by the law of a country to which I have never been and with which I have no legal or cultural connection.

But there is one particular clause that I find to be especially irritating, and unlike sand in an oyster, does not produce a pearl. I am referring to noncompetition clauses.

I am a freelance editor. By definition it means that I have more than one client. If I have only one client, the IRS is likely to look askance at my claim to being a freelancer and call me an employee, something neither I nor my clients want. Consequently, I sometimes wonder if my clients are confusing noncompetition clauses with nondisclosure clauses, although they assure me they are not.

The illogic of the noncompetition agreement is that clients are unwilling to divulge their client list. How can I possibly know who I should not solicit as a client because of such an agreement if I do not know who the packager wants me to not solicit? The answer is, all too often, that the packager basically wants me to stay away from everyone who could possibly provide me with work except them — even though they are unwilling to commit to giving me more work than the current project.

More importantly, from their perspective, I would think, is the possibility that the IRS would ask why a freelance book editor, someone who is supposedly not an employee of the packager, be required to sign a noncompetition agreement when by the very nature of being a freelancer, I am in competition with the packager, at least to the limited extent of the limited number of services I provide. The normal situation is that an employee who is leaving the packager’s employ would be asked to sign a limited noncompetition agreement because it would be expected that the leaving employee is leaving with knowledge about the employer’s clients and business.

I have raised this issue several times with those who ask me to sign a noncompetition agreement. I have even suggested that we submit it to the IRS for an advisory opinion, because if I am going to be made an employee, I want to bargain for all the benefits. Not only has there been a general refusal to discuss the matter, there has been universal refusal to get that IRS opinion. I am not surprised.

For the purpose of the noncompetition agreement, it is editing that is the subject matter. These agreements need to spell out exactly what areas I cannot compete in (which they do not), and it basically has to be limited to the services I actually provide the packager (again, which it is not), that is, limited to editing.

But then the packager would need to attest that my editing services are unique and particularly valuable. If they are run-of-the-mill, they cannot be restrained by a noncompetition agreement. When I raise this point, I ask if the packager intends to pay me a premium for my services, so that it would be clear that they value my editing skills much more than the skills of any other editor, which might make my editing skills unique, not run-of-the-mill. Alas, that has not yet occurred — but I keep trying.

Part of the problem is that some lawyer somewhere has given the packager a bunch of papers for freelancers to sign without stressing that the forms are appropriate for certain types of work but not for others. The people who do the freelance hiring at the packagers are told to have the freelancer sign the forms and so they become insistent, and impervious to any suggestion that the forms (or clauses) are inappropriate for the work I am being hired to perform.

So that puts us at a stalemate: the packager won’t hire me without my signing and I won’t sign.

I know that some of you are saying “just sign, get the work, and move on.” The problem is that there may be nowhere to move to. If I sign a noncompetition agreement without knowing who I am to avoid and without narrowing down the services involved, I could be putting myself out of business. The usual case is that the packager and I both often do work for the same client. Think about a publisher the size of McGraw-Hill, Pearson, Wiley, or Elsevier. They produce thousands of books and journals every year and have numerous divisions. How unusual do you think it is for both a packager and an editor to work with one of them? But if the packager’s agreement is signed as presented, you may be precluding yourself from working with such companies.

Besides, why should such a limiting agreement be signed without appropriate compensation? If you give up valuable rights, in this instance, the right to work with clients you may have worked with for years, should you not be compensated?

I am constantly amazed by editors whose job it is to deal with words, language, and meaning, yet who will blithely sign contracts without considering the ramifications of signing. Just as I give the manuscripts I work on a careful read and think about what message is being communicated, so I do the same on my own behalf when it comes to signing contracts for editing work.

Would you agree not to edit a spy novel in the future because you are being hired to edit one today? Sign a noncompetition agreement and you might be saying exactly that. Would you agree not to edit a book on pediatric medicine for McGraw-Hill because you edited one for Elsevier three years ago? You might be agreeing to that.

The point is that you need to read noncompetition agreements very carefully. You need to be sure that its scope is very narrow and that all of the entities you are not to approach are identified. Even more importantly, you need to negotiate compensation for the rights you are giving up. Finally, I would think about whether signing the agreement would change your status from freelancer to employee in the eyes of the IRS. Because I am averse to signing such agreements, I make it clear that I plan to send the agreement to the IRS for review. So far, that has been enough to have the agreement disappear without my signature.

Richard Adin, An American Editor

On the Basics: Being Businesslike

by Ruth E. Thaler-Carter

The other day, I met a colleague for coffee who’s a freelance writer, proofreader, and voice-over professional who has been doing well at finding and being recommended for projects, but confessed to being terrible at the business side of dealing with clients.

Many of us struggle with the business of editing (and writing, proofreading, indexing, desktop publishing; whatever editorial work anyone here might do). That struggle is one reason for Rich Adin’s book by that very title (The Business of Editing: Effective and Efficient Ways to Think, Work, and Prosper), and for this blog and the columns by its various contributors.

Some of the things we talked about inspired this column.

Setting policies and limits

Getting paid can be the hardest part of freelancing, no matter what service or skill you provide. My colleague did the smart thing with a recent project: She asked for an advance on a five-book project for a local arts institution. The plan was that she would be paid a certain amount before starting, receive a payment as she finished each book, and then receive a final payment when the last book was done.

The good news: She got the first payment. The bad news: She didn’t get it right away. Because she knew the project was on a tight deadline for publication, she felt obliged to start work based on the promise that the advance would arrive soon. Even though the first payment did show up soon after she got started and the subsequent payments did come in reasonably on schedule, she realized in hindsight that she ran a real risk of not receiving the advance and there was a constant sense of foreboding over each payment.

Version control

Another project was a great example of scope creep: Every time she turned around, the client added more to the project. Because she did not have language protecting against the ever-expanding project, she was expected to absorb the new requests without additional payment — and felt obligated to do so. She spent a lot more time on the project than she had planned and wound up only being paid what amounted to minimum wage.

Contract concerns

Many of us have had the good luck to work with clients without needing contracts, or ones who adhere to contracts to our benefit. The most frustrating part of another project for this colleague was that the client ignored almost all of the elements in the contract. Yes, they signed it, but then proceeded to violate almost every clause. She eventually asked why they had agreed to the conditions of the contract when they weren’t complying with it.

The client’s response? “We wanted you for this, and no one else.” That is, they were willing to agree to anything as long as she agreed to do the work. She was flattered — and floored.

Because she’s a self-confessed perfectionist with an “if I start something, I finish it” work ethic, she did not want to walk away despite the frustrations. She knew that she was being played, even as she basked in the sense of being wanted and supposedly the only person who could do the project. She couldn’t figure out how to stand her ground, nor could she walk away.

Reality checks

Being committed to providing excellent service can backfire. Whether it’s from a sense of perfectionism and a commitment-based work ethic, or a fear of negative consequences (not getting paid, having the client badmouth you to colleagues), remaining committed to a project when the client is behaving badly is not good business. It’s bad for the project, bad for your mental (and physical) health, and bad for your business. As hard as it is to stand up for yourself, it’s something we all have to learn to do.

Being told “We want you and only you” or “We’ll agree to anything to get you on board” feels great. Sometimes that’s the beginning of a beautiful relationship with a client who does value you and treats you with respect, but sometimes it’s bait for a situation that turns into a nightmare. The flattery can blind us to a headache-inducing client or project.

One way to handle a situation like this is to do a reality check. Some of us may really be so unusually skilled that we’re the only one — or the best one — for a given project, but most of us aren’t all that unique. We want to feel that we are, but we aren’t; except for rare circumstances, we can be replaced. Another editor might do things differently, but differently does not necessarily mean worse.

Feeling irreplaceable can interfere with all kinds of aspects of freelancing, and sometimes even with working in-house. It can blind you to the reality that a client is treating you badly and making you crazy, and that it would be better for your business and yourself to either reset the boundaries or walk away.

Getting help

One strategy that my beleaguered colleague and I discussed implementing has two aspects: (a) keeping a contract template at hand that includes language regarding both a fee advance or deposit and protection against scope creep, so you don’t have to reinvent the contract with every new client, and (b) using your website to state such a policy.

Possible language could be:

“An advance/deposit representing 50% or the first X hours of the project is required with a new project. Depending on the length and scope of the project, interim payments may be required. The finished project will be provided once full payment is in hand.”

And:

“Any requests for work beyond the scope of this agreement/contract will be charged on an hourly basis in addition to the original fee, and will not be provided or performed without such additional payment.”

Not all clients will go along with such a policy, but it could be a lifesaver, especially with an individual author or a graduate student. While most such clients can be trusted to pay as agreed, some either never intend to pay for editorial services or do not budget sufficiently to pay the tab. When they see the final amount in your invoice, they panic, go into sticker shock — and disappear. This can especially be a concern with students, because when they hand in that paper and get that degree, they’re gone, and you might not be able to reach them to chase down your payment.

If you require an advance and establish interim payments for a lengthy project, you protect yourself against not getting paid (or at least against not getting paid in full), and you also help the client. Most people find it easier to pay a couple hundred dollars at a time over a few weeks to months than a couple thousand all at once when the project is done.

Establishing your policy

I hadn’t thought of this until that coffee date, but establishing your business policy for payments and scope creep and posting it at your website is worth considering. Doing so could head off problem clients who could become nightmares of uncontrolled project morphing and payment hassles, no matter how appealing the project might seem on the surface. However, merely posting it at your website is not enough to make the terms part of the work agreement.

It is important that specific policies — regardless of what they address — be included in written contracts and, because many of us do not work under formal contracts, in your e-mail exchanges with the client. At a minimum, your correspondence should include a statement such as:

“Additional terms governing our work relationship are available at ________ and are made an explicit part of our agreement by incorporation by reference.”

(Caution: Do not make supplementary terms available only on social media like Facebook. Not everyone participates. Be sure that wherever they are posted, they are universally accessible without a client having to “join” some third party.)

Finally, having colleagues to lean on and consult can be a lifesaver in establishing good business practices. Even just meeting over coffee to bewail the trials and tribulations of a problem client or project can provide useful insights from someone who has been there and done that.

For more insights

A number of other essays at An American Editor relate to this one and are worth reading for additional insights on the business of editing, including (for additional essays, be sure to search the An American Editor archives):

• The Commandments: Thou Shall Establish the Rules of Engagement Before Beginning a Project
• Getting Paid: Things for a Freelancer to Think About
• The Business of Editing: 8 Reasons Why Editors Are Underpaid I and The Business of Editing: 8 Reasons Why Editors Are Underpaid II
• On the Basics: So You Want to be a Freelancer
• The Business of Editing: Keys to a Project Quote (I) and The Business of Editing Keys to a Project Quote (II)
• The Business of Editing: Saying Yes, Then No
• The Business of Editing: Contracts — A Slippery Slope
• Editors and Contracts: Editor Beware!
• Compromise and Expectations — A Clash in the Making
• The Business of Editing: Expectations
• Great Expectations: A Recipe for Disappointment
• The Business of Editing: Fee Negotiations (Part I), The Business of Editing: Fee Negotiations (Part II), and The Business of Editing: Fee Negotiations (Part III)
• Relationships & the Unwritten Rules 

 

Rich Adin’s book (with Jack Lyon and myself), The Business of Editing: Effective and Efficient Ways to Think, Work, and Prosper, provides additional practical insights on this important topic.

The key is to remember that being the world’s best editor is not enough for a profitable career; you must be a good businessperson as well!

How have you handled payment, scope creep, and other business concerns? How have you found supportive colleagues, either online or in real life?

Ruth E. Thaler-Carter is an award-winning freelance writer, editor, proofreader, desktop publisher, and speaker whose motto is “I can write about anything!”® She is also the owner of Communication Central, which hosts an annual conference for colleagues, and a regular contributor to An American Editor.

Copyediting and Line Editing Series Fiction

by Carolyn Haley

Series fiction is a boon for everyone in the publishing chain. Authors have a ready market for their work; independent editors can get repeat work from a single client; publishers have a steady flow of sellable material; readers get their fiction appetites regularly fed.

That combination is why I favor series fiction in my editing business. For independent copyeditors and line editors who may be looking to add series fiction to their roster of services, here are the main factors to consider.

Style sheets

The most important part of editing a series is building a comprehensive style sheet. While this is also true for standalone novels, it’s crucial for series to ensure continuity and consistency between volumes. Months or years may pass between editing each volume, especially if the author is writing and sending them for editing one at a time. Also, different editors might work on different volumes. In both situations, a style sheet constitutes the series’ connective tissue.

Editors working directly with indie authors are free to design style sheets according to their own parameters meshed with the author’s needs. An excellent quartet of essays on what to include on style sheets, and why these items need to be included, was presented here by the previous Thinking Fiction contributor, Amy Schneider. See Part I: General Style, Part II: Characters, Part III: Locations, and Part IV: Timeline.

When editors subcontract to publishers, they must follow the house’s lead on style sheets. The instructions could be as simple as to include character names in alphabetical order and follow Chicago Manual of Style, or as complex as to fill in a fancy-formatted template just so, for characters, places, timeline, and special terms.

Any time editors are hired to work on a series volume later in sequence than volume 1, it’s important to confirm with the indie author or the publisher’s production coordinator whether the editor is expected to make a new style sheet for each new volume or consolidate new material into the style sheet established for the previous volume(s) so that one sheet travels with the series.

Single vs. batch manuscripts

Publisher-provided series usually come to the editor one book at a time with long intervals in between. Series from indie authors, however, may come as either single books or a multivolume batch. While one-at-a-time is most common, batches may come when an author wrote an epic and decided to break it into volumes, or planned from the start to write a trilogy but wanted to complete the whole work before editing.

It’s easier and more efficient to edit a series as a unit than as single books spread out over time, but doing them all in one shot takes a big bite out of the calendar — a downside for editors who like or need to keep a diverse cycle going, but a plus for editors who like tackling large projects. Psychologically, immersion in one world and one author’s style can become grinding without a break. On the other hand, immersion may make the editor aware of slight nuances that change a character or story from what was previously described.

Even if such immersion is desired, editors need to be careful about putting an entire series into one contract. It makes sense to do so on the surface, because in essence the job is one really big novel instead of X number of individual novels, and the style sheet is created once instead of multiple times. But over the extended period of a series job, the risk runs higher than with standalone novels that difficulties might arise, such as:

• the editor or author might have a change of circumstance and be unable to fulfill their end of the agreement;
• the editor might recognize too late that they underestimated the scope of work, or the author might dramatically change the scope as the series develops, forcing the contract to be renegotiated and the editor to possibly lose the balance of the project if it gets appreciably more expensive or complex;
• one party might become dissatisfied with the other’s personality, or the material, partway through and want to bail out.

Editors who haven’t prepared for such possibilities in the contract can get trapped in a bad deal for a long time, making it wise to have a lawyer review the contract before anyone signs. If nothing else, in an all-in-one contract, the editor should make certain there’s an escape clause after each volume.

I prefer to contract for volume 1 separately, then negotiate a rate or service change for the balance of the series after its qualities are understood. That opens the door to losing the subsequent volumes because the author and I can’t agree on what needs to be adjusted, but I’m more comfortable with that risk than those associated with an all-in-one contract. Usually by the time we’re done with volume 1, we’ve established a rapport that allows successful negotiation. When in doubt, I’ll treat each volume as a standalone novel and make a deal for them individually.

Series basics

Each volume in a fiction series must be a complete story, with a beginning, middle, and end, and a character(s) struggling to resolve one or more conflicts. At the same time, each volume must advance an overarching story or theme that evolves during the series and is resolved at series end. In effect, a series author is writing two books simultaneously, for as many volumes as the series runs.

Some beginning authors believe that ending a volume on a cliffhanger will inspire readers to rush to the next volume to find out what happens. More often than not, this backfires, and frustrated readers feel cheated and may not continue with the series. The trick is to leave just enough of the overarching story unresolved in each book to draw readers onward. But the episode covered in a volume must conclude satisfactorily before the next one begins, even if the next episode opens immediately afterward in the timeline. In this regard, series novels follow the same pattern as series TV shows.

A major challenge in writing any fiction is determining how much backstory to include. The goal is to provide enough information to keep readers oriented, and the action and characters in context, without overloading the narrative with an “info dump.” In series fiction, however, the backstory not only has to be provided in the right measure to begin with, but then must be reiterated in subsequent volumes to a different degree. Ideally, readers start with volume 1 when it comes out and eagerly await the next one, and don’t need refreshers as they continue through the series. In reality, readers might discover a series at volume 4, so they must be given enough backstory to understand the basics of what’s going on, without the author having to set up the scenario all over again.

Broadly, volume 1 should establish the premise and key characters for the series, and subsequent volumes should unfold new developments and show character growth. All volumes should refer back to the first with a light touch wherever understanding the new story depends on knowledge of what came before. Some series authors open each volume with a preface covering the previous volumes, but that can get cumbersome after the second or third book and is not commonly done. Other authors may write a prequel to an existing series and provide full backstory for an established audience hungry for more detail.

Tough spots

A tricky situation is when an editor gets volume 2 from an indie author who has already self-published volume 1, and no style sheet comes with the volume 2 manuscript. This might happen if the author didn’t use a professional editor the first time, or if the author wants to switch editors and the original editor didn’t create a style sheet for the job. For the new editor to make the new volume consistent with the first, they need a copy of volume 1 as part of the job and to build extra time into the quote because every style point will need to be backtracked to create the style sheet for the book in hand and any that follow.

It helps the editor to read all volumes of the story that came before, to best understand what’s happening in the new volume — but somebody has to pay for the time it takes to do so. That somebody should be the client, not the editor, so the editor has to factor extra reading time into their quote. It’s less critical to read previous volumes when working for publishers who are on the ball with style sheets, and whose pay rate is low and schedule is tight, because the existing style sheet should have most of the information the editor needs to do the job without becoming upside-down financially. With novels by inexperienced indie authors, though, the backstory can aid an editor in doing their job well so the author will come back for more.

Sometimes what starts out as a standalone novel expands into a series. An editor might work with an indie author on the single title then be contacted later for an unexpected volume 2. Having done a detailed style sheet for the original project will pay the editor back when responding to the second opportunity. If their schedule can’t accommodate the new book, then they’ve at least made life easier for the editor who takes their place. That won’t fill the first editor’s wallet but will reflect positively on their reputation, and maybe bring back the author for volume 3 or lead to future referrals.

Author fatigue

It’s not safe to assume that editing a series will get easier with each volume. Sometimes authors get fatigued from thinking up new stories inside a fixed scenario, or bored by the whole thing, and the quality of their work may deteriorate instead of improve as they push on. Marketplace pressure also can influence an author, in that readers just want more of the same thing while the author itches to stretch in a new direction, or is obliged to turn out the next volume in less time than they need to write it well.

Most copyeditors and line editors aren’t involved in an author’s content angst, but if they’ve been working with the same indie author since volume 1, then they’ve probably established a personal relationship and care about the author’s growth and the series’ success. To help that relationship happen and help authors avoid fatigue before it starts, editors can suggest at the beginning of the series that the author plan a finite number of volumes and outline the primary plot of each one within the plot of the whole. That simple guideline can both direct the author’s energies and allow the editor to raise relevant questions during the series’ progress to help the author stay on task while being creative.

Editing series fiction can be both challenging and rewarding, especially for editors who themselves are series readers. From that habit they know how a series can thrive or pall, or vacillate in its quality, and be motivated to help authors start strong and continually improve. The bonding potential with authors adds a richness to the experience. When the business and technical sides are carefully arranged, then the creative side can bloom to mutual satisfaction and result in a series that delights the reading public and earns income for everyone in the publishing chain.

Carolyn Haley, an award-winning novelist, lives and breathes novels. Although specializing in fiction, she edits across the publishing spectrum — fiction and nonfiction, corporate and indie — and is the author of two novels and a nonfiction book. She has been editing professionally since 1977, and has had her own editorial services company, DocuMania, since 2005. She can be reached at dcma@vermontel.com or through her websites, DocuMania and New Ways to See the World. Carolyn also blogs at Adventures in Zone 3 and reviews at New York Journal of Books.