Advice - General / Commissions and contracts

A commission to carry out and deliver a piece of work often starts informally with a telephone call from the client to a freelance or vice versa. It is important to be completely professional from the first contact.

Any freelance offered work needs to be sure the person doing the offering has the authority to do so.

It is best to confirm all oral agreements promptly in writing, either by fax or email: these days an email counts as "in writing" so you do not have to hunt down a fax machine. An oral agreement is a contract - so long as it includes the necessary legal elements of: offer and acceptance; intention to make an agreement; and a promise of "consideration" (that is, exchange of any things of material value, including money). The difficulty with oral contracts lies in proving what was agreed, if anything.

As soon as a freelance has agreed to carry out a piece of work and has agreed the terms and fee, they have a contract with the client. No matter how rushed the job, you must establish the details: confirm the brief, the agreed fees and expenses, the agreed delivery date, and the rights licensed to the client to use the work.

Often, it is best for the freelance to take the initiative in writing up what has been agreed and sending it to the editor. In general, editors reasonably want to concentrate on content and things go best if the freelance does the thinking about the contract. The Confirmation of Commission form can be useful (see below).

Work submitted "on spec"

Anyone offering work "on spec" must make sure that the client is in no doubt that terms of use have to be agreed before it can be used. (It may be reasonable for freelances to submit articles to a publication they haven't worked for before on the basis that they will be paid if it is used. Otherwise, we advise against submitting work "on spec", and particularly against accepting "on spec" terms instead of a commission - see Negotiating fees.)

Checklist for negotiating a commission

  1. What is the name and position of the person commissioning you?
  2. What have you agreed to do or supply?
  3. When is the deadline?
  4. In what form must the work be delivered - by email, on disk, or even hard copy? What file format does the client want - plain text, Word, RTF or TIFF, JPEG?
  5. What rights are you licensing, for how much?
  6. How many hours or days are you being commissioned for, if you're working on that basis?
  7. What expenses will be paid?
  8. When will you be paid?
  9. Should you, the freelance, invoice? When? To whom? Or will the client make a "self billing" payment?
  10. Do you need to quote a purchase order number or other reference to get paid?
  11. Have you dealt with all relevant insurance issues?
  12. If you are supplying materials such as transparencies, when will they be returned to you?
  13. Are you being asked to "indemnify" your client?

Confirmation of Commission form

The Creators' Copyright Coalition Commission/Confirmation of Sale form (available from the Freelance Office and www.londonfreelance.org/forms) lists a range of rights you might license to a client. Ticking the appropriate boxes on the form will make it clear to you and your client just what you have agreed.

Indemnities - challenge them and get insurance

Honourable publishers and broadcasters will back freelances if lawsuits arise from work that they have published or broadcast. Some, however, want to offload as much risk as they can, regardless (or perhaps because) of freelances being particularly vulnerable financially.

It is increasingly common for contracts to include clauses that require the journalist to provide "warranties" and indemnities". These contracts can be ruinous if things go wrong. You can often challenge them, however.

And NUJ members can get very reasonable insurance to cover such risks and more, which may arise regardless of the contract.

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Text © Mike Holderness & previous contributors; Moral rights asserted. Comments to ffg@londonfreelance.org please. You may find the glossary helpful.

The National Union of Journalists must not, can not and would not wish to dictate rates or terms of engagement to members or to editors. The information presented here is for guidance and as an aid to equitable negotiation only.

Suggestions apply to contracts governed by UK law only. In any event, nothing here should be construed as legal advice.