Terms that should alert freelances to problems with a contract
I'M NO LAWYER but... As freelance journalists all of us need to know how to complete that
sentence with a clause such as "I do know what 'assign
copyright/warrant/indemnify' means". Because we'll be very lucky to get
through a freelance career without encountering a fair few corporate
contracts full of tortuous phrasing and, often, torturous intent.
NUJ members, through the NUJ's Copyright Committee, have been calling
for a contract glossary to help at least spot when the amber-to-red
lights should be flashing. So here is one, accompanied by a little advice on
how, by negotiation, the wording might be revised so that you don't
lose ownership of your work and/or your shirt.
- Ownership of a piece of work. Under UK law
freelance/self-employed creators, including journalistic
writers, photographers, cartoonists etc, own copyright in their work. Staff creators
do not - their employers do.
- All the rights contained within copyright, plus any other rights connected with your work (they want it "all", whatever it is).
- Any maker of a piece of creative work, including journalistic
writers, photographers and cartoonists . This term is used in the 1988 Copyright,
Designs & Patents Act, but also in some corporate contracts.
"You hereby assign copyright/all rights to The Company"
- If you agree to this, "assign" means you have transferred
ownership of your copyright - all rights in your work - to the Company and
you no longer have any rights to it (unless the contract of assignment
says otherwise - for example sometimes syndication payment to the freelance is
contractually guaranteed despite the company taking ownership of the
"The freelance shall retain the copyright in the material..."
It's looking good - but always read what comes next, in case it's
"...the company shall have the exclusive right to use,
publish, syndicate and/or license all other rights in the material for
the full term of copyright."
- This is known as an "exclusive license". It leaves you with the
shell of copyright ownership and scoops out all the contents, sneakily
achieving the same result as an all-rights assignment - that is, you
cannot resell your piece of work so, unless the contract also specifies
further payment(s), you cannot make any further income from your work.
The "full term of copyright"
- The "term of copyright" is how long it lasts: in journalistic material this is the author's
life plus 70 years after his/her death.
- "Exclusive" is a word to watch out for. If you grant someone an exclusive licence, then
you may have given up the right to grant anyone else any kind of licence - so it's rather more exclusive than an "exclusive" news story!
- At the least, you have given up the right to grant anyone else a licence to do the same kind of thing with the work
- for instance, the client may graciously "grant" (that is, leave you with) the right to use a newspaper or magazine piece in your
Collected Works volume. Contrast "non-exclusive", which comes next for clarity.
"The company shall have the non-exclusive right to use, publish etc"
- The company can reuse your work in any way the contract
specifies (with further payment to you or not as per the contract), but
you have the same rights of reuse yourself: that is, you can do whatever you
like in terms of further sales of the piece of work where the rights you
have agreed to license to the company are non-exclusive.
- One caution:if you have sold one publisher non-exclusive rights in a piece of work,
you cannot sell another publisher exclusive rights - the two are, erm,
But in the last two pars there's been another contractual buzzword...
"You hereby license to the company the following usages..."
- To "license", in copyright contract terms, is to give
permission for specified uses - in exchange for specified payments,
preferably! (Such payments might be expressed as percentages - of the
original fee, for instance, or of a syndication fee - or as actual
amounts of money.)
- Only the copyright owner can issue such licenses, so
that's usually where the freelance wants to be: the copyright owner,
licensing usages in exchange for coin of the realm (though republican
currencies are also acceptable).
"You hereby license the company to syndicate the work to..."
- To "syndicate" means to sell your work on to other publishers.
You can do this yourself, negotiate fees and so on.
- But if you license either the original publisher or a syndication agency (a photographic
agency is in effect a syndication agency although they're not called
that, they're called photographic agencies) to syndicate your work you
should be paid at least 50 per cent of the gross fee the purchaser pays
(sometimes this may be a lot more or a lot less, but 50/50 is very
"I hereby license to the publisher one use of the work / first usage of the work / First British Serial Rights to the work..."
- These are three variants on normal, narrow licences for use.
Very often a freelance will not want to and will not be asked to offer a
wider license than one of these. So "one use" is just that - note it
doesn't say it's "first use" - because "first use" is different and
means what it says.
- For clarity the use should be defined, in terms of the
basic usage parameters: time, medium and territory. Hence, the common
term, especially in magazines, "FBSR" (or FBS) meaning first use in
Britain during the cycle of the publication (a month on a monthly, a
week on a weekly etc).
- Is just archaic lawyer tosh of course, along with assorted
"hereinunders" and "aforealludedtos". Fear not the compound preposition
or adjective, concentrate on the key words and you probably will get a
hammerlock on this sodding contract, honest.
"You irrevocably waive any and all moral rights you have in the work..."
- Try to resist this clause. If you're waiving, you could be
drowning. To "waive" a right is to give it up.
- There are two main "moral rights", established within the 1988
Copyright Act: a) the right to "identity" - to be named as the author,
i.e. byline or credit, b) the right not to have your work treated in a
"derogatory" manner (such as, the meaning distorted in some fashion). If
you "waive" them they don't exist any more in any medium.
- Wrinkles: UK law excludes moral rights in newspapers and magazines so contracts in
those fields which demand a waiver are thinking about when your work
maybe gets reused on the web or in a book where moral rights do exist.
- And the moral right of identity (also known as "paternity") actually
needs to be "asserted" in order to stand contractually,
so borrow the wording from the front of any novel you're reading, which goes something
"The author hereby asserts his/her moral right to be identified as the author of (the work)..."
- You need to "assert" your moral right to a credit or byline for it
to take effect. (Yes, this bit of UK law is distinctly odd.) The phrase above will do nicely. It can be in the same file as
your words or pictures, or it can be on your invoice.
- Asserting these rights doesn't stop you waiving them afterward. Common sense would lead you to avoid that.
- In newspapers and magazines the law doesn't give you any moral rights anyway. You can ask the
publisher to agree to write them into the contract - which, oddly
enough, following a negotiation with the NUJ years ago, the Guardian and Observer do.
- It's still worth asserting your moral right to be identified, in case your work is later used in a book or
in another context where the right does have effect.
- By the way, you put the "hereby" in to show you can use redundant
tosh as well as any high-priced lawyer. Sadly, the hereinunder is by no
means redundant; in fact, it's downright dangerous.
"You warrant that"
- "Warrant" means guarantee or promise. Look out. You're about
to be really held to account, potentially blamed for... all sorts. The
rest of the sentence will probably say any or all of: "the work will not
infringe the copyright, moral rights, rights of privacy or any other
rights of any third party. Nor will it be defamatory, obscene,
blasphemous nor otherwise actionable by law."
- No sensible person could
sign such a warranty - except under duress, of course, which happens -
because only courts of law, in retrospect, could determine any of these
breaches (though the union is keen that members do acknowledge and take
their responsibilities to other authors on the copyright front). Many
editors/publishers who issue these contracts really don't care if you
just delete this clause and the one that comes next. But a helpful
fallback position, because it eases the absoluteness of the warranty, is
to insert "to the best of your/my knowledge and ability" at the start
of the sentence or wherever it works grammatically. Because the full-on
warranty really bites when you see that it's followed by...
"You indemnify us from all claims, proceedings, costs, losses, expenses, and any other liabilities (arising from your work)"
- This we know as the "lose-your-house" clause. Or "your-shirt"
if you haven't yet joined the home-owning democracy.
- If you sign up to this along with the warranty, then you have agreed to pay (indemnified the company
against paying) the full costs of any civil suit or criminal prosecution
arising from your work - whether the legal action is justified or not.
- Again, many editors/publishers aren't bothered at all if you delete this
section of the contract in its entirety. Other wheezes to mitigate the
indemnity clause include trying to limit the areas of liability (for example
cut it back to copyright only, where you do have some control because
you should know if you're potentially plagiarising someone... and then
not do it) or limiting your liability to the amount of the fee for the
work (which, if the worst occurs, could limit your liability to, say,
£500 instead of a million) - again these gambits are often accepted
by the staff human beings you deal with, regardless of what corporate
So that's the dodgy words, and suggestions on what you should
eliminate if you can - or duck and dive around if you have to.
If you see any of these wailing-siren words and aren't sure what to do next,
the NUJ Freelance Office has immense knowledge and experience and can
help you try to improve such heavily "legaled" contracts.
However, square-one advice is to create your own contracts out of your
pitching-and-dealing email exchanges with commissioning editors. Your first
choice is not to get it in writing - though that can be OK - it's to put it in writing: then you, the freelance, are in control.
© Phil Sutcliffe/NUJ