Freelance Writing Contracts: What You Need to Know

Before I begin, I urge everyone to hire an attorney to draft their freelance contract. This cannot be overstated. A good attorney is essential in any business. Someday you will need one to send a letter to a deadbeat client or take a client to court based on your enforceable contract. Your success relies on the strength of your contract and your case.

I am not an attorney. This article is for information purposes to familiarize you with a freelance contract. It is not intended as a substitute for an attorney’s advice.

Okay, enough disclaimers. Let’s get to the heart of the matter.

You need a contract. Don’t work without one. It’s not worth the risk of forfeiting payment and that can happen if you don’t protect yourself. I cannot tell you how many times I have had to threaten legal action (or actually take legal action) to get paid. Even then, there were times when I was not—bankruptcy, clients refusing to pay but in an amount not worth getting an attorney involved, and one client who went to film in Thailand and ended up in jail. I never did get paid for that project.

If you are working for a publisher, they will provide a contract to you. If you hire your services out to a corporation, small business, or nonprofit, you may need to provide the contract.

A lawyer can draft a boiler plate contract or letter of agreement using the proper the structure and using relevant terms. This is likely all you will need for the majority of your projects. If you take on a large project, call your attorney to draft a project-specific contract. If a contract is sent to you, have your agent or lawyer review it before signing.

Always be ready to go to court if you must. In most cases, it’s not worth it, but you should have the choice. If you work without a contract, you will not have that option. You will be out the funds. If you go to court, you need a signed, enforceable contract.

Here are some things you need to know about a freelance writing contract:

Litigation is not always the answer.
In many cases, the amount of money being disputed is not worth the cost of attorney’s fees and court costs. Sometimes a firmly stated letter from your attorney is enough to shake loose a payment. Sometimes it’s not.

Working without a contract is a gamble.
It might work out fine, but you run the risk of not being paid or treated fairly.

There are options for simple contracts—you can:

Contact your local SBA or SBDC for help. They can refer you to local attorneys or help you understand what you need and what to ask for from a lawyer.

Consult the local bar association for referrals to local attorneys who specialize in business contracts.

Ask around—find out who other creatives are using for their legal needs. It’s often better to use someone familiar with freelance work and creative contracts because they are familiar with the specific issues facing writers.

Client agreements or contracts are essential to your success.
Here are some clauses you should include:

Scope of Work or Statement of Work
This covers the core elements of your work. Think of it as a detailed list of what you are providing. The more complete it is, the better. Otherwise it is easy for a client to add items along the way. This is called Scope Creep. It is not a good thing. A detailed contract will give you the ability to suggest an addendum to cover additional items. For example, if I am hired to write a documentary film script, I make sure to include the final run time, number of locations, time for research, number of interviews, how many rounds of edits on the script, that there will be a treatment, a first draft and up to three additional drafts, and when payments need to be made as a start. Be thorough. It will help you in the end.

Ownership of the Work
This is also known as Copyright. It is an explanation of who owns the final work and how it may be used. There are two industry standards.

One is to “assign” or give your client ownership. This means you relinquish all rights to the work. this is often known as a Work for Hire project. The typical way to assign rights is to retain copyright until final payment is made for the work at which time you transfer the copyright to the client.

The second route is to “license” the work. This means you grant your client the right to use the work in specific ways, while you retain ownership and control. Licensing requires strict terms that should be drafted by an attorney and be included in the contract. These terms should include whether your work can be modified or altered and, if so, how. These types of arrangements are often royalty-based, which needs to be addressed too.

Revisions
I always spell out my revision schedule, including how many rounds of edits I am willing to include in a flat rate contract and when my hourly fee applies beyond that. This is the only way to limit out-of-control changes. If you don’t spell it out in the contract, it is easy to have endless rounds of changes that go way beyond the original scope of work. By limiting the rounds of edits to a specific number, I have recourse if the client can’t make up his mind. I typically allow small edits beyond that main number, but it depends on when the changes are requested and how. Be reasonable in your number though. Good writing happens in rewriting and the client should have feedback to get the message right. The idea behind this clause is to prevent excess, not to be stingy or unreasonable.

Deadlines
Always be sure to include deadlines in the contract. This locks everyone in. BUT have a line that allows for delays for force majeure, client delays, or anything else that may happen. You don’t want to be held to a firm deadline if a major hurricane hits and you are without power for two weeks or if the client is three weeks late, leaving you only one day to finish the draft.

Payment
This is fairly straight-forward. You need to include the agreed upon amount for the project in the contract, whether it is a flat rate or an hourly rate with a “not-to-exceed amount” or estimate, if they apply. I always include a base rate and then add potential reasons for additional fees and what those would be (for example, if the client exceeds my limit for editing rounds or if they add to the scope of work). It’s always good for clients to know where they stand if they do want changes.

Payment Due
Make sure you include when you need to be paid. Some projects will require partial payment up front or milestone payments for larger projects. Even if you agree to a flat rate project paid at the end of the project, you need to include when that payment is due, whether it’s a 30-day net or upon receipt of final project or invoice. Many clients will have payment terms that align with their accounting department so work with them to come up with agreeable time frame for getting paid and then enforce the deadline.

Late Fees
I include a late fee for payments that do not arrive on time. It is not an enormous fee (typically 1.5% of total payment per month). It’s a nudge, not a hammer. But sometimes that’s enough to get paid on time.

Kill Fees
Sometimes a client hires you to write something and then changes his mind a few days later, canceling the project. This happens a lot with content mills and publications, but is not out of the question for even reliable clients. It happens. A kill fee allows you to recoup your time spent on the project. Sometimes the kill fee will be a certain percentage of the total amount (say 15%) and other times it is a simple reimbursement for time spent based on time logs. Be reasonable, but include specific details as to how and when a kill fee would apply. You won’t get paid for the entire project, but it help alleviate the sting of losing a good project.

Expenses
Typically as a freelancer, you are responsible for your own expenses. If you are asked to travel or incur expenses on your client’s behalf, you should include terms for being reimbursed for those specific expenses. This should be included in your contract and signed before you incur the expenses.

Attorney’s Fees and Costs
Should you go to court, you will want the opportunity to recoup your attorney’s fees and court costs. You can only get this if you include it in the contract. But know you are entitled to this compensation only if the court sides with you. If you lose, you will be responsible for these fees and possibly your client’s attorney’s fees and court costs.

Amendments
All changes need to be in writing and signed by both parties as an addendum to the original agreement. If you verbally agree to something, it is not covered. It’s beyond the scope of the contract and does not fall under its protection. Get it in writing.