Don’t Sign Away Your Rights

Filed as Features, Guides on February 25, 2008 10:10 am

Repost This

Many bloggers dream about getting a recurring guest blogging position. Whether paid or unpaid, many bloggers toil in relative obscurity for years before being offered a chance to write for a large site.

However, the excitement of being offered a new writing position often causes bloggers, as well as other writers, to make serious mistakes. When they receive their first contract, they either do not read the document carefully or, in a desperate bid to please their new employers, sign the contract with little regard to the rights that they surrender.

However, when you sign your name to a contract, you are bound to it and signing a bad contract can have long-term consequences that can both limit the rights to your own work and the scope of your future projects.

No matter how good of a deal the contract seems to be, it is worth taking a moment to read through it and watch out for the rights that you may be giving away.


Words to Watch Out For

When you sign a contract to write or have your content used on another site, you are inevitably going to give up some rights. In order to merely display the work, the site needs a wide swath of rights including the right to display, publish and perform the work, as well as rights to create derivative works, in case they have to edit the work.

However, many often grab more rights than are necessary. Though few sites will attempt to have you sign over full copyright in the work, those contracts are difficult to write and often don’t stand up well in court, they can ask you to sign over so many rights that you effectively have no control over your own writing.

There are some words that you should be wary of if you see them in a contract and, if you do see them, you should think carefully before signing.

  • Exclusive: Many companies or sites will require that you give them an exclusive license to the content. This will prohibit you from posting the work on any other site, including your own, or using any derivatives of it. This right is relatively common given that search engines dislike duplicate content and is not wholly dangerous, but can be problematic when combined with the rights below.
  • Sub-licensable/Transferable: Sub-licensable means that the recipient can license out the rights they obtain to third parties, transferable means that they can pass them on wholesale. Both mean that your work can be sold or given to other sites without your approval or compensation.
  • Perpetual/Irrevocable: Most contracts have a means of termination, however, if the rights granted are perpetual or irrevocable, they can not be returned to the author and the person purchasing the rights has them indefinitely, even if the writer quits.
  • Moral Rights (Outside US): If you are from outside the U.S. or are working with a company from another country, a mention of surrendering moral rights or the right to enforce them is dangerous. Moral rights are, among other things, the rights of the author to be attributed for their work and are independent of copyright law. Sacrificing them means that you do not have to be credited for your work.
  • Non-Compete Clause: Though not a copyright issue directly, a non-compete clause can restrict you from writing about similar topics on another site, including your own. A strongly-worded clause may even force you to close down an existing site.

It is important to note that, generally, these types of contracts are written to protect the purchaser against any and all foreseeable situations that could arise from their use of the work. The mere fact that there is a request for rights in the contract does not indicate that they intend to flex those rights.

However, if you sign those rights over to them, you have no ability to object if they do decide to take advantage of them later.

Alternatives

It is important to remember that there is nothing permanent about a contract until you sign it. If you receive a contract you are not comfortable with, you are free to alter it and negotiate the terms of it. Only when both parties sign it does it become final.

If you see any of the elements above and are not prepared to sign over those rights, consider some of the following alternatives as compromises.

  • Instead of a simply offering blanket exclusivity, offer a period of exclusivity. Given the nature of most work on the Web, the value will likely be diminished after a few weeks and/or months. This also gives the search engines plenty of time to determine which site is the “original”.
  • Rather than simply allowing the work to be sub-licensed, request approval of all parties that wish to license it to ensure that your work is not connected with a party that could tarnish your reputation.
  • Make sure that there is a valid means of terminating the contract and reclaiming a reasonable amount of rights. Though a proper contract will likely give them the right to continue to use the work long after the contract has ended, make sure you reserve some rights in your own content.
  • You can likely surrender most of your moral rights without much headache, but make sure that attribution rights are spelled out in detail.
  • A non-compete clause in and of itself is not that outrageous, but work to ensure that the clause terminates when the contract does, that all existing sites and works are excluded and that the definition of what is “competing” is clearly spelled out.

Be Careful of What You Don’t Sign

The only contract that can be more dangerous than the one you do sign is the one you don’t. As more and more bloggers and writers work for sites without first signing a contract, they often find themselves walking into very risky situations.

The problem is that, in the U.S., such paid writing deals are almost never considered works for hire. This means that, without a contract, it is hard for either party to know what rights in the work they do or do not have. This can make for very heated disputes both in and out of the courtroom.

If you are entering a situation where you are writing for another site, paid or unpaid, without a contract, be sure to save all correspondence between you and the person you are writing for. Barring a formal contract, the rights assigned are typically based upon whatever was informally agreed to. If something isn’t discussed, it usually defaults to whatever the industry standard is, thus creating an implied license.

Unfortunately, that can vary wildly from court to court and case to case.

However, you are much better off with a bad contract that claims too many rights than no contract at all. If possible, always get the terms in writing.

Conclusions

The simple fact is that no one likes dealing with contracts. They are long, boring and intimidating. Even people such as myself, who read legal documents almost every day, are loathe to deal with them.

However, they are a necessary part of any professional writing job and serve to protect both the writer and the contractor. Since a good contract needs only be read and signed once and can lead to months or years of happy employment, it is worth taking a few minutes to do so.

After all, a good read-through of a contract can save you months or even years of headaches down the road.

Tags: , , , ,

This post was written by

You can visit the for a short bio, more posts, and other information about the author.

Submissions & Subscriptions

Submit the post to Reddit, StumbleUpon, Digg or Del.icio.us.

Did you like it? Then subscribe to our RSS feed!



  1. By Lorelle VanFossen posted on February 25, 2008 at 10:43 am
    Want an avatar? Get a gravatar! • You can link to this comment

    Excellent. As many bloggers move from self-publishing to guest blogging, paid blogging, and paid writing for print publications as their blog expertise and reputation grows, this is critical information. It comes up more and more as bloggers, used to controlling their work, confront writing and publishing contracts for the first time.

    Thank you.

    If a blogger/writer has already signed a contract that gives away their rights, how do you recommend they either get those back or at least ask permission. I know the answer would take a book, but is there a way out?

    Reply

  2. By Jonathan Bailey posted on February 25, 2008 at 11:28 am
    Want an avatar? Get a gravatar! • You can link to this comment

    Lorelle: That’s a tough question as a company is not obligated to do anything as long as they have a signed contract.

    If you have signed a bad deal and want out of it, the first thing I would do is look for the termination clause. How do you end the agreement. Even bad contracts have one.

    With that in the back of your head, approach your boss and ask for a new contract. Be polite about it and make a case for why, but be prepared to exit the deal you have if you feel strongly enough about it.

    The sad truth is that, the same as most bloggers don’t read their contracts thoroughly, neither do most companies. Most of the time the company uses either a stock contract they found or one that was written many years ago. They may not realize just how bad it is.

    If you’re a valued employee, you can often negotiate a new contract, especially if you don’t ask for a raise at the same time. Just realize that they don’t have to do anything and that, if they aren’t willing to cooperate, you should have your exit strategy mapped out.

    If you signed a bad deal, you’re most likely better off getting out of it as soon as possible.

    Reply

  3. By Owen posted on February 27, 2008 at 6:43 pm
    Want an avatar? Get a gravatar! • You can link to this comment

    Nice piece and much needed. Almost every blogger I have ever talked to has a very limited and poor understanding of these issues – but there are two big things you are missing.

    First off there is the publisher’s point of view – in this case I am speaking ONLY of reputable publishers. Please note – I am taking the publisher’s position here – NOT saying what is right or what should be.

    Since I have worked for print and online publishers for years you should know there are several issues here that a smart publisher will NOT give way on. Also – I am referring to new work that is commissioned – NOT something that has already appeared on your blog.

    Exclusivity – this can be handled by being more specific about what rights you are acquiring. If I commission a piece then I expect to get exclusive online rights in perpetuity. End of story. I am looking for a piece in my publication and I don’t want it to appear elsewhere unless I say it is OK. On the other hand I probably don’t care at all about print.

    Sub-licenses or transfer rights – you are more than spot on here – I would as a writer not allow these at all – and as a publisher the only way a sensible one would do this anyway is in the form of the original – in other words, a reprint or another avenue of distribution – but still with my branding on it.

    Perpetual/irrevocable – again, as a publisher I would expect to get this and keep it – and again I don’t care about it or want it in a venue where I don’t publish.

    Moral rights – you are totally correct here – and the publisher should be prepared to take a clause like that out.

    Non-compete – this one depends. If you are doing the substantial majority of your work for me I might ask for it – but I’d be prepared to pay more. But if you are just writing a piece for me it is up to me to make you want to write other pieces for me rather than my competition. Most freelancers should take it out and most publishers will be fine with that.

    Also you mentioned that it could be worse to NOT have a contract. In my experience publishers that want a contract are always more reliable than those that don’t. 100% of the time. And if they don’t offer one they should be able to get you one immediately when you ask.

    THe other thing I mentioned at the beginning is venue. Online is different than other publishing mediums. It can be tricky and people really don’t understand their rights or what contracts mean. Three years ago I set up a publishing company and published a compilation of the best of food blog writing for the previous year (this was early days for food blogs). I contacted a lot of food bloggers and requested contributions and asked only for non-exclusive, one-time rights to the pieces in question for the book. THe only other thing I added was a clause that they couldn’t have the piece go in another food blog compilation book. They could have it in any other kind of book, put it online, etc.This was probably the single most open and lenient contract they will ever see and still a significant minority wouldn’t sign.

    Reply

  4. By Jonathan Bailey posted on March 1, 2008 at 9:29 am
    Want an avatar? Get a gravatar! • You can link to this comment

    Owen: First off, thank you for the response and for bringing it in from the other angle! Much appreciated!

    Regarding your disagreements over exclusivity and irrevocability, the point of this article wasn’t so much to tell people to never ever ever ever ever ever ever ever sign those rights away, but to, if they see those rights listed, stop a moment and consider the consequences.

    Would I sign a contract that was perpetual and exclusive? Yes. But it would be harder to get me to sign than the one you described. (For the record, that IS a very lenient contract and I will vouch for that!)

    The main problem that arises from exclusivity is the derivative works issue. If I write a story about omelets for your food blog (no idea why I would, just an example) and later wrote a similar, but different one for my own site or even referenced the article I wrote for you later, that could be a derivative work and, without clarification for what is exclusive, could cause problems (if you were an evil admin, which I would doubt you are).

    The problem with irrevocability only becomes a problem in conjunction with extreme exclusivity. If I can’t gain at least some rights back, I can never write about omelets again.

    As you said, there needs to be more clarification about what is exclusive but the problem is that most contracts don’t provide that. Looking through cookie cutter agreements, most do not clarify what rights are exclusive and do a “full on” grab.

    Anyway, the point of the article is to point out a few words that people should look out for and think long and hard about before signing.

    Of course, in a perfect world, people would think long and hard about everything.

    Oh, and to those that refused to sign your contract, tell them not to join YouTube or Flickr either. Their terms of service are at least almost as demanding…

    Thank you again for your comment!

    Reply

  5. By Michael posted on September 8, 2008 at 3:41 am
    Want an avatar? Get a gravatar! • You can link to this comment

    This is a good grounding in freelance writing assignments generally. These questions are the same ones writers have to get their heads around. As a freelancer, I have to add that there are times when it is best to take the money and run! Don’t get overly uptight about the conditions.

    Reply

    Your words are your own, so be nice and helpful if you can. If this is the first time you're posting a comment, it might go into moderation. Don't worry, it's not lost, so there's no need to repost it! We accept clean XHTML in comments, but don't overdo it please.

    Current day month ye@r *