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

August 9, 2017

From the Archives: Editors and Contracts: Editor Beware!

(The following essay was originally published on
 An American Editor on December 5, 2011.)

My editing world is, admittedly, fairly narrow. Years ago, I decided that I would only do a certain type of work (subject matter-wise) and only for select clients (i.e., publishers, not authors). Consequently, the following discussion is shaped by 28 years of that narrow world and is focused on contracts between freelancer and publisher/vendor.

Over my editing career, I have been asked to sign a contract less than six times; I have never asked a client to sign one. Until recently, the last contract I was asked to sign happened a decade or more ago. I’m not sure why this is the case, except that I think my clients view the situation as I do — a contract isn’t necessary between companies.

Also until recently the purpose of the contract wasn’t really to detail the relationship’s obligations but it was to establish that I am not an employee and cannot be construed to be an employee of the client. In other words, it was to protect the client from my claiming that I was an employee of the client and entitled to employee benefits. The contract was designed to establish my relationship with the client should the Internal Revenue Service come knocking on the client’s door.

For the most part, once a client realized it was issuing payment to a company rather than to an individual, and once the client realized that I have payroll obligations, something employees of the client wouldn’t have, I think the necessity for a contract disappeared.

But recently I was asked to sign a contract.

The story begins with a publisher who asked me to edit a book that will run between 7,000 and 9,000 manuscript pages. The book has a “fussy” author (that’s fussy in the good sense of being both knowledgable about and caring of the use of language, not in the negative sense of being troublesome) and a short deadline of 12 weeks. Manuscripts of this size are what I commonly deal with and the short deadline just raises a challenge, not an obstacle that can’t be overcome. (And it is projects and deadlines like these that make investing in macros invaluable!)

Although I was asked by the publisher to take on the project, the work and payment would come through a third-party vendor. The publisher would simply tell the vendor that I was to be hired to do the editing and that the rate had been agreed on. I was to work with the vendor and not the publisher.

That arrangement is not unusual in today’s publishing world. It is more common, perhaps, at least in my niches, for my name to be on a list of preapproved editors from among which the vendor can choose and negotiate a rate. I admit that I rarely find that to be good for me.

So the project is agreed to and the procedure agreed to and the work starts. Nothing more occurs until I submit the first batch of edited chapters and an invoice. That is when the vendor tells me that there is a contract that the vendor requires every freelancer to sign. The purpose, I’m told, is to ensure confidentiality. (I wonder who would want to see the edited manuscript for one of these books other than the author, but I also have no problem with agreeing to confidentiality.)

So the standard agreement was sent for my signature.

Let’s start with a few questions to set the stage: How many editors read such agreements? How many understand the agreement? How many editors are willing to say no and refuse to sign absent significant changes? How many editors are fearful that if they do not sign the agreement an avenue of work will dry up and leave them in dire straits? How many editors would say to themselves “although I don’t want to sign I better because I’ve already completed x% of the work and I want to get paid”?

Okay, you have the idea as to the stage-setting questions and undoubtedly can add more to the list, yet it is the answers that matter.

The contract I was offered was wholly one-sided. I had all of the obligations and none of the benefits. I wasn’t even assured of receiving the project I had been hired for if I signed the contract. In addition, the contract was riddled with grammar and spelling errors, which would leave the terms of the contract in a state of flux. But the worst clause of all — and there were many candidates for this honor, not least of which was the clause that required editing perfection and set the vendor up as the sole judge of whether the editing was perfect  — was that any dispute arising from the relationship between myself and the vendor had to be resolved in a court in India! The contract even mentioned Indian labor laws, as if I would have any idea of what Indian labor laws permit, do not permit, or require. Interestingly, the contract was open-ended; no work was promised and no specific project named — the contract remained in force until explicitly terminated by the vendor. Does indenture sound familiar?

I have nothing against India but I have never visited the country, I have never worked in the country, I have no plans to either visit it or work there, and I know nothing about Indian labor laws. Why would I sign such a contract? More importantly, why would any non-India-based editor sign such a contract (perhaps it shouldn’t even be signed by an India-based editor)?

And consider the perfection clause I mentioned earlier. Professional editors know that there is no such thing as perfect editing. There are very few rigid rules in editing that apply universally and never change, which is why we have, for example, 16 editions of The Chicago Manual of Style and 11 editions of Merriam-Webster’s Collegiate Dictionary and 3 editions of Garner’s Modern American Usage.

I offered to sign a modified contract, but that was rejected. A colleague, Ruth Thaler-Carter, suggested to me that at the very least I should insist on a clause that reads along these lines (with additional modifications by me): “Freelancer cannot be held responsible for changes made by the Vendor once freelancer has submitted his/her/its editorial work to vendor and that should Vendor make changes that result in any form of liability to Freelancer, Vendor agrees to indemnify and hold harmless Freelancer at Vendor’s expense.”

Editors face a dilemma. They want and need the work that comes to them via third-party vendors, yet they really shouldn’t sign open-ended, one-sided contracts, especially ones that require them to use a foreign court system to resolve disputes. What editor could afford to go from the United States to India to enforce a claim for $500?

There is no easy solution to this problem. In my case, it was resolved to my satisfaction, but that was because of the intervention of the publisher, not because the vendor wanted to be reasonable. The vendor’s position was that you either sign the agreement as presented or you get no work. The vendor is really in the catbird seat because there are thousands of editors from which it can choose, but there are, by comparison, few vendors.

Could you walk away from such a job? Most editors cannot, which brings me back to a topic I’ve mentioned before: Professional editors really need a professional guild, at least a national one but preferably a worldwide one, whose focus is on protecting the member editors and finding the member editors work.

Even if you believe you have no choice but to sign on the dotted line, you should take the time to carefully read and evaluate any proffered contract. In addition, you should try to negotiate the more onerous clauses. Under no circumstance should you sign a contract like this that is open-ended. If you must sign such a contract, limit it to the project at hand. You never know when an open-ended contract will come back to bite you.

Richard Adin, 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.

December 5, 2011

Editors and Contracts: Editor Beware!

My editing world is, admittedly, fairly narrow. Years ago, I decided that I would only do a certain type of work (subject matter-wise) and only for select clients (i.e., publishers, not authors). Consequently, the following discussion is shaped by 28 years of that narrow world and is focused on contracts between freelancer and publisher/vendor.

Over my editing career, I have been asked to sign a contract less than six times; I have never asked a client to sign one. Until recently, the last contract I was asked to sign happened a decade or more ago. I’m not sure why this is the case, except that I think my clients view the situation as I do — a contract isn’t necessary between companies.

Also until recently the purpose of the contract wasn’t really to detail the relationship’s obligations but it was to establish that I am not an employee and cannot be construed to be an employee of the client. In other words, it was to protect the client from my claiming that I was an employee of the client and entitled to employee benefits. The contract was designed to establish my relationship with the client should the Internal Revenue Service come knocking on the client’s door.

For the most part, once a client realized it was issuing payment to a company rather than to an individual, and once the client realized that I have payroll obligations, something employees of the client wouldn’t have, I think the necessity for a contract disappeared.

But recently I was asked to sign a contract.

The story begins with a publisher who asked me to edit a book that will run between 7,000 and 9,000 manuscript pages. The book has a “fussy” author (that’s fussy in the good sense of being both knowledgable about and caring of the use of language, not in the negative sense of being troublesome) and a short deadline of 12 weeks. Manuscripts of this size are what I commonly deal with and the short deadline just raises a challenge, not an obstacle that can’t be overcome. (And it is projects and deadlines like these that make investing in macros invaluable!)

Although I was asked by the publisher to take on the project, the work and payment would come through a third-party vendor. The publisher would simply tell the vendor that I was to be hired to do the editing and that the rate had been agreed on. I was to work with the vendor and not the publisher.

That arrangement is not unusual in today’s publishing world. It is more common, perhaps, at least in my niches, for my name to be on a list of preapproved editors from among which the vendor can choose and negotiate a rate. I admit that I rarely find that to be good for me.

So the project is agreed to and the procedure agreed to and the work starts. Nothing more occurs until I submit the first batch of edited chapters and an invoice. That is when the vendor tells me that there is a contract that the vendor requires every freelancer to sign. The purpose, I’m told, is to ensure confidentiality. (I wonder who would want to see the edited manuscript for one of these books other than the author, but I also have no problem with agreeing to confidentiality.)

So the standard agreement was sent for my signature.

Let’s start with a few questions to set the stage: How many editors read such agreements? How many understand the agreement? How many editors are willing to say no and refuse to sign absent significant changes? How many editors are fearful that if they do not sign the agreement an avenue of work will dry up and leave them in dire straits? How many editors would say to themselves “although I don’t want to sign I better because I’ve already completed x% of the work and I want to get paid”?

Okay, you have the idea as to the stage-setting questions and undoubtedly can add more to the list, yet it is the answers that matter.

The contract I was offered was wholly one-sided. I had all of the obligations and none of the benefits. I wasn’t even assured of receiving the project I had been hired for if I signed the contract. In addition, the contract was riddled with grammar and spelling errors, which would leave the terms of the contract in a state of flux. But the worst clause of all — and there were many candidates for this honor, not least of which was the clause that required editing perfection and set the vendor up as the sole judge of whether the editing was perfect  — was that any dispute arising from the relationship between myself and the vendor had to be resolved in a court in India! The contract even mentioned Indian labor laws, as if I would have any idea of what Indian labor laws permit, do not permit, or require. Interestingly, the contract was open-ended; no work was promised and no specific project named — the contract remained in force until explicitly terminated by the vendor. Does indenture sound familiar?

I have nothing against India but I have never visited the country, I have never worked in the country, I have no plans to either visit it or work there, and I know nothing about Indian labor laws. Why would I sign such a contract? More importantly, why would any non-India-based editor sign such a contract (perhaps it shouldn’t even be signed by an India-based editor)?

And consider the perfection clause I mentioned earlier. Professional editors know that there is no such thing as perfect editing. There are very few rigid rules in editing that apply universally and never change, which is why we have, for example, 16 editions of The Chicago Manual of Style and 11 editions of Merriam-Webster’s Collegiate Dictionary and 3 editions of Garner’s Modern American Usage.

I offered to sign a modified contract, but that was rejected. A colleague, Ruth Thaler-Carter, suggested to me that at the very least I should insist on a clause that reads along these lines (with additional modifications by me): “Freelancer cannot be held responsible for changes made by the Vendor once freelancer has submitted his/her/its editorial work to vendor and that should Vendor make changes that result in any form of liability to Freelancer, Vendor agrees to indemnify and hold harmless Freelancer at Vendor’s expense.”

Editors face a dilemma. They want and need the work that comes to them via third-party vendors, yet they really shouldn’t sign open-ended, one-sided contracts, especially ones that require them to use a foreign court system to resolve disputes. What editor could afford to go from the United States to India to enforce a claim for $500?

There is no easy solution to this problem. In my case, it was resolved to my satisfaction, but that was because of the intervention of the publisher, not because the vendor wanted to be reasonable. The vendor’s position was that you either sign the agreement as presented or you get no work. The vendor is really in the catbird seat because there are thousands of editors from which it can choose, but there are, by comparison, few vendors.

Could you walk away from such a job? Most editors cannot, which brings me back to a topic I’ve mentioned before: Professional editors really need a professional guild, at least a national one but preferably a worldwide one, whose focus is on protecting the member editors and finding the member editors work.

Even if you believe you have no choice but to sign on the dotted line, you should take the time to carefully read and evaluate any proffered contract. In addition, you should try to negotiate the more onerous clauses. Under no circumstance should you sign a contract like this that is open-ended. If you must sign such a contract, limit it to the project at hand. You never know when an open-ended contract will come back to bite you.

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