Freelance Writing Contract Protocol: Yours, Mine, or Ours?
Last week I wrote about payment terms, and that generated a new question from a subscriber about contract protocol, in general. Like, if the client routinely works with freelance writers and has its own contract, do you insist on using your own?
In a word: No.
Let’s look at a few scenarios in which you should expect the client to provide a contract, when you should provide your own – and what to do if a client won’t sign a contract at all.
WHEN TO USE THE CLIENT’S CONTRACT
I want to preface this section by saying you can always try to get a client to use your contract, if you want to, but certain types of clients won’t be willing to do that. Generally speaking, you can expect these types of clients to offer you their own contract:
- Agencies
- Media outlets
- Large corporations
- Companies that routinely work with contractors, including freelance writers
These types of clients usually won’t allow you to substitute your own contract for theirs because they value uniformity in working with contractors like freelance writers. Also, a lawyer probably drew up their contract, and that way they know it works for various types of contractors and provides the client with the most favorable contract terms.
That’s the part that should bid you pause.
As I’ve said before, you should learn how to scrutinize contracts for unfavorable language like indemnification clauses that could cause you to lose your house. Literally.
Sometimes, these clients will be open to negotiating specific contract clauses that disfavor the writer, such as kill-fee clauses. Sometimes, you can simply draw a line through various clauses, initial the change, sign and return the contract – and no one ever says boo about it.
Other times, you’ll just be stuck with the contract provided. If you want to do business with that client, then you’ll have to sign it.
WHEN TO USE YOUR OWN CONTRACT
As you probably know, proposals play a key role in my marketing funnel. Proposals allow me to craft a customized service estimate for each prospect. This allows me to position a variety of service offerings side-by-side at different price points, which makes it easier for a client to work with me (and, after all, that’s the name of the game – working together).
But even if you don’t use proposals, you can offer your own contract whenever you’re working one-on-one with a client. If the client prefers to use their own contract, they’ll surely tell you. And then you can negotiate which contract to use.
Of course, if you don’t have a lawyer to produce your contracts for you, then they may not favor you to the extent they could if an actual attorney drew them up. I mean, I wrote my own contract and know that it probably contains gigantic loopholes that could expose me to liability. It would be well worth the expense to have an attorney create a boilerplate contract for me.
Memo to self.
Anyway, when you’re first starting out, I think the important factor is simply to make sure you execute some type of contract with each client. Even if it’s a poorly written contract, it will get the basic information down on paper, in an agreement that can be enforced in court.
I’ve never had to take a client to court, but if I ever do I’ll be happy to have a contract in hand that states the project scope and payment terms both parties agreed to.
WHAT TO DO IF A CLIENT WON’T SIGN A CONTRACT
Sometimes, especially in publishing (journalism), a client won’t offer you a contract. If you ask for a contract, the editor may say something like: We don’t do contracts. We just put everything in an email.
Is this a red flag?
It depends on a little bit on where it’s coming from.
As I say, in publishing it’s not unheard of for a magazine or newspaper not to execute formal contracts with every freelance writer. Sometimes they’ll provide an “assignment letter” instead. This is a very brief (often one page) document that outlines the article to be written, deadline, and payment terms. Or sometimes they’ll spell out all the assignment details in an email chain. (Courts have found these hold up as “contracts” for purposes of collecting monies owed.)
You can evaluate the situation by assessing:
- The age of the outlet
- The prestige or reputation of the outlet
- Online complaints (use Google) by writers
But do be advised that even the most reputable publications sometimes fail to pay. Bottom line: If you’re uncomfortable with the lack of a formal contract, don’t write for the outlet.
It’s a different story when we’re talking about content clients.
In my estimation, it’s a red flag if a content client refuses to sign a contract. That’s not to say I haven’t done business with small companies who want to move forward on an ad hoc basis, such as just having me write a couple of blog posts per month sans contract. But when I do enter into those types of arrangements, I document as much as I can via email regarding the deliverables, timelines, fee, and payment terms.
Also, I only do that with very small projects, under maybe $1,000 per month in value. This way, I limit my financial exposure.
And I make sure I receive payment each time before I begin working on the next month’s deliverables.
So, that’s three typical contract situations you might encounter, plus the general protocol for each.
As a small business owner, you get to set the rules for how you do business with clients. You can feel free to insist on contracts – or be willing to work without them – at your sole discretion. In short: you have choices.
Just be prepared to accept the potential consequences of your choice, as well. Sometimes you’ll make a decision that works out fantastic, and other times a decision will bite you in your gluteus maximus. That’s all a perfectly normal part of being an entrepreneur!
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