Hooray! You have a contract for your work! You look it over and are met with a wall of legal gibberish. But these things are probably standard, so you make sure the rate is correct and sign it and send it back in. You’re not a lawyer, after all, you’re a freelance writer. But in the back of your mind, you wonder (and maybe worry) about what you don’t understand in that contract. I’m here to help, with a breakdown of standard contract provisions! Complete with “Buts,” “Ands,” and “Cautions” to help understand the ramifications.
Lots of people would preface something like this with “I am not a lawyer.” I am a lawyer, but this information doesn’t count as legal advice. If you’re worried enough about signing something that you hesitate to sign it, ask a legal professional for assistance.
The Basic Stuff
Here’s all the stuff you know, but you should check and get it correct before signing your contract.
Names and Addresses. Is your name and address right? Is the company or person you’re working for named as well (here, I’m going to call that person or company your “publisher”)?
Rate. Is the rate you’re going to get paid specified and correct? This is usually a per-word rate, but it might be an overall rate or be a per-word rate with a specific maximum. This might also be listed on a separate page rather than in the body of the contract. If there’s some penalty for being late, this might also be included. Make sure this is what you agreed on.
Due Date(s). The contract should give your due date. It might also specify other dates, such as an outline due date, a milestone due date, or map turnover dates. These should all be acceptable to you.
Get it Back. You’ll probably be asked to sign the contract first. Most people just email a pdf scan of the signature page, but it’s better practice to sign it, scan the entire contract, and send that in. It keeps the whole file together if the contract later becomes an issue.
And: Politely ask for a copy countersigned by the publisher to be sent back to you (even if all they give is a pdf scan of the signature page), and file it away somewhere.
Making Changes. If you want to change a written contract, it’s easiest by far to just not sign it, ask the publisher to fix it, and sign the corrected contract instead. If you otherwise need to make a specific change to a contract, like changing a due date of May 1 to May 31, the clearest way to do so is to line out the error, write the new language clearly, and have both parties initial the change (if only one part initials the change, it might not count in court).
More Complicated Stuff
Here are provisions or concepts that aren’t in everyday use (even if they’re typical for contracts like this), so require some explanation.
Work for Hire. Your contract will almost certainly say your work is “for hire.” This means you don’t have any ownership in the words once you’ve turned them over. They’re not “your” words any longer, they’re the publisher’s. This is typical and reasonable.
Caution: Keep this in mind for the future! If you write six adventure encounters for one publisher, you can’t later sell any of those same encounters to some different publisher—they aren’t your words any longer.
But: The opposite of a work for hire agreement is a license agreement, where you sell the rights to use your words for a certain amount of time, then the words revert to you and the publisher doesn’t get to use them anymore. RPG publishers very rarely operate this way, but you might see something like this for a temporary writing gig (like something posted online to drive business for a limited-time crowdfunding project, I suppose). The rest of this article presumes a work-for-hire arrangement.
Payment Terms. In addition to making sure the payment is right, you also want the contract to say when you’ll get paid. If this isn’t present, ask for it. It’s typical to be paid 30 or 60 days after you turn in the project.
And: It’s also nice if the contract specifies how you’ll actually get paid (by sending in an invoice and then getting a check, by PayPal to a specified email address, or so on).
Caution: Beware of payment X days after “publication,” because the publisher can functionally delay that as long as they want.
Your Representations. These contracts frequently require you to acknowledge (or “represent and warrant,” in legal parlance) that your work is your own and it doesn’t violate anyone else’s copyrights, intellectual property rights, or similar. As the work you’re producing should be wholly your own, this is a reasonable request.
Non-Employment/Independent Contractor. It’s important for a publisher to make very clear in the contract that you aren’t an employee—or conversely, that you are an independent contractor, which is the “opposite” of an employee. This is so the publisher doesn’t have to pay taxes, benefits, and stuff like that which they would have to provide for their actual employees. You’re not getting a job, but a freelance commission, so this is reasonable and typical.
And: Overcautious publishers might put some strange-sounding provisions in the contract, like ones that state you’re an independent professional, that you’re free to set your own hours, that the publisher won’t be providing you with direct supervision, or that you’ll do the work with your own equipment and premises. Although these give you lots of freedom, which is nice, they’re specific factors the IRS considers in deeming someone an “independent contractor” rather than an “employee” for tax reasons, so they’re actually in there for the publisher’s protection.
Termination. The contract might state how the contract might end, and whether one party can unilaterally make the decision to terminate it. Often, the publisher can terminate if you don’t produce within a certain time period, which is reasonable.
Exclusivity. This is an uncommon provision in freelance contracts, but watch out for it! You want the freedom to juggle other projects that come along (even if you don’t have any right at the moment), and you don’t want the publisher to restrict your time. If there’s a provision that specifies your work during the term of the agreement must be exclusively for the publisher, ask to have it removed.
And: In fact, great contracts will have a specific “non-exclusivity provision” that expressly states each party is free to do other stuff, with language something like this: “This Agreement does not establish an exclusive relationship between the parties. The parties are not restricted from dealing with other companies or organizations not party to this Agreement with respect to providing or securing services similar to or equivalent to the services which are subject of this Agreement, so long as such dealing does not violate the obligations set forth herein.” Note that last bit; non-exclusivity isn’t something designed to let you otherwise escape your contractual obligations.
Confidentiality. The contract likely states that you have to keep your work for the publisher confidential; you likely also have to keep anything else you learn from the publisher while working on your project secret (if they give you a prerelease copy of something for your reference, say). This is very common and probably fine, but you should review this provision to make sure you understand what you can’t say.
And: Confidentiality provisions normally have a few important exceptions, which allow you to reveal stuff. The most typical are: (a) if it’s publicly known already, (b) if you learned about it prior to entering the arrangement with the publisher or from someone than from the publisher, or (c) if a court or law compels you to disclose it.
And: If you want to playtest your stuff or have a friend review it, it’s very professional to tell your publisher, “hey, I’d like to do X, but I understand I have confidentiality obligations with you and wanted to ask you for permission.” That shows you’re taking your confidentiality seriously, and publishers like that.
Copyright/Intellectual Property Rights. The contract probably has a provision about how the work you do for the publisher becomes intellectual property of the publisher or becomes copyrighted by the publisher, and not you. That’s reasonable; it’s a work for hire contract, after all. So this is a pretty common provision.
And: The contract might also specify that you’re required to take any actions necessary to preserve or protect the publisher’s right to the work (for example, if the publisher later needs proof that the words are theirs and not yours, you’d be required to write and send a letter to that effect). So long as the word “reasonable” is in there (that you must take “reasonable” actions, for example), it’s fine.
No Marketing/No Use. The contract probably says the publisher isn’t obligated to market or use your work. That’s fine; it doesn’t mean they don’t have to pay you, but it does mean your words you give to them might never see the light of day. This happens with products sometimes, and veteran freelancers all have stories about masterful works they wrote which will never be released (and can’t be repurposed without getting the words “back,” because the words belong to the publisher once you’re paid, as I described above). Sad times.
Caution: Be cautious if the contract says that you don’t get paid if the work isn’t published: that’s not fair to you, and you should ask to have such a provision removed.
Statement of Work. This is more a point about how some contracts are structured. Some contracts have the provisions all grouped together in one part, and the specifics about project names, due dates, and pay rates all on a separate sheet called a “statement of work” or “deliverable description” or something like that. This is commonly the case when the publisher expects to have lots of contracts active at once, so they don’t have to keep revising or rewriting their main contract. This is quite typical, so nothing to fret—although you should be sure that the main body of the contract refers to (or “incorporates the terms of”) that separate Statement of Work (or whatever it’s called). That’s how it becomes a formal part of the contract.
The Truly Esoteric Terms
Here are some provisions that non-lawyers rarely understand, so I’ve given a quick summary of strange words or concepts. These are normally tucked near the back of the contract, in the last few provisions. But that doesn't mean you shouldn’t know what they’re about!
Indemnification. This is about risk-shifting. It’s a common contract provision that basically says, “If one party gets sued because of something the other party did, the liability (or fault) automatically goes to the wrongdoer.” Let’s say you include stuff in your turnover that is somebody else’s intellectual property, but the publisher doesn’t know it and doesn’t have a reasonable way of realizing it (most publishers know not to include mind flayers or beholders, as those belong to Wizards of the Coast, but you might slip something more obscure past them). The publisher gets sued by the rightful intellectual property owner for infringement. An indemnification provision allows the publisher to say, “hey, this wasn’t my fault; it was my writer’s fault,” and the writer becomes liable. This isn’t a totally unfair provision, because the fault should come to rest on you if you’re to blame.
And: Most publishers, if they include an indemnification provision at all, have a one-way provision: the writer indemnifies the publisher only. I prefer a two-way indemnification, where each party indemnifies the other. That way, risk can shift the other way if necessary (for example, if the publisher fills your final product with mind flayers and you get sued because you’re prominently listed as the author). But two-way indemnification in service contracts like these are rare, so you might just decide to live with one-way indemnification.
But: Or you might prefer no indemnification provision at all. Some legal experts think that indemnification disfavors service providers—in this case, you—so you’d rather not have it at all. I’ll let your specific lawyer opine on that.
Entire Agreement. Many contracts have a provision like “This contract is the whole agreement between the parties and supersedes any prior written or verbal discussions.” This protects the publisher, so you can’t later go back and say, “You told me I’d get a thousand dollar bonus if the Kickstarter funded!” This provision means anything outside the contract itself isn’t binding. It’s a very typical provision.
Caution: This provision creates two points to consider: first, this is why you need to make sure that everything you and the publisher agreed on is in the contract. If you agreed on 10 cents per word but the contract says 5 cents per word, you won’t be able to sue for the 10-cent rate. Second, remember above when I said you should confirm that a Statement of Work is referred to in the contract itself? That’s so it’s encompassed by this provision and not considered outside, disregarded language (you don’t want your rate disregarded!).
Waiver. Let’s say your agreement says you’ll write 10,000 words by December 31st. You come up with 9,000 words and tell the publisher you’ve pretty much covered the topic and does she want the remaining 1,000 words to touch on something else. The publisher says, no, as it turns out 9,000 words is going to be just fine. But the holidays are busy, and you never get around to giving the turnover the last editorial polish before turning it in, and now it’s mid-January. The publisher says, “hey, where is your turnover?!” and you say, “well, since you didn’t seem to care much about the agreed-upon words, I figured you didn’t care much about the deadline either.” That’s not cool. A waiver provision in a contract says, basically, that just because one aspect of the contract is changed or ignored or forgiven (in legal parlance, “waived”) the other parts are all still in effect. This is standard and reasonable.
Survival. This term means that some provisions continue to be active and bind the parties even after the agreement is over and terminated. It’s typical to have a confidentiality provision survive, so you can’t turn over your work, get paid, and start blabbing all over about the publisher’s upcoming product. Pay attention to which terms will survive, and understand those don’t “go away” when the contract is done.
Severability. There is sometimes a risk that if a single provision of a contract is held to be illegal or unenforceable by a court/arbitrator/law/etc., then the entire contract is thrown out as unenforceable. One bad apple spoils the bunch, so to speak. This type of result is usually bad for both parties, but particularly for the publisher. So many of these contracts include a provision like “if one part of this contract is held to be invalid, it doesn’t affect the other contract provisions.” That’s a reasonable provision.
Governing Law/Dispute Resolution. This provision details which court or state law controls if one party sues the other. This is nearly always the local court/state for the publisher, as it’s easier to get a lawyer in your hometown. In more specialized industries (banking, finance, etc.), certain jurisdictions are better than others. But service contracts are generally fine anywhere. I don’t worry much about this as long as it’s in the United States somewhere.
Caution: Unfortunately, there’s sometimes a lot of legal jargon here like “plead forum non conveniens” and similar to make an otherwise straightforward concept pretty opaque.
Mediation/Arbitration. The contract might require that the parties use a mediator or arbitrator if there’s a dispute, rather than going to a trial by jury. This is also fine. Mediation tends to be cheaper and produce a more balanced outcome in my view (although other legal minds disagree).
Other Provisions: If there are any other provisions that just plain puzzle you, it never hurts to just ask your publisher. Frankly, lots of contracts are created by cut-and-pasting boilerplate language, so it’s no unreasonable to find a wholly inappropriate concept creeping into a contract. Asking, for example, why there’s a restriction on state licensure mentioned might result in, “Oh, here’s why we have to do that for our state,” or “oops, that wasn’t supposed to be in there at all.”
Go forth, better armed to review your contracts!
