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Tuesday, August 21, 2007


The Contract Conundrum

Hat tip to Romenesko at Poynter.org for including in its Friday edition a link to last week's Native Intelligence blog post about the age-old issue of freelancer contracts.

As I explained in the post, the contract conundrum has been exacerbated in recent years by media layoffs and buyouts. Not only have more journalists been flushed into the freelance pool, but staff reductions have increased the reliance of publications on material produced by freelancers.

The result — more good journalists signing more bad contracts.

As Christine Tatum, president of the Society of Professional Journalists, wisely observed earlier this month at the conclusion of a post on her Freedom of the Prez blog:
"Far too many freelancers are not in a position to negotiate their own terms, and they are, frankly, continuing to sign bad contracts because they have no other choice if they want to pay the bills."
Highly skilled as the freelance ranks may be, many people are unqualified and, sadly, unwilling to challenge the many different contracts they receive each month. Some publications refuse to change contracts, but even if that's not the case, negotiations can take considerable time, which many freelancers don't have to spare.

This isn't just about wages and copyrights, both of which are cause enough for concern. This is also about the many other matters that freelancer contracts seek to define.

Some contracts seek give the publication ownership of notes and electronic files, a point that sometimes goes unnoticed because the notes and files remain in the possession of the journalist, unless the publication someday has a reason to seek them out.

Some contracts seek to bind the journalist to prevailing-party clauses, which means the loser pays all fees in the event of a legal battle between the journalist and the publication, a move that sounds about as advisable as betting your savings in a no-holds-barred cage match with a professional fighter.

More alarming than that, however, are contracts that seek to assign all legal liability to the journalist, which means if someone files a claim against the work, the journalist would pay for the court costs and attorney fees to defend it.

One need not look far to find examples of lawsuits filed against the work of freelance journalists.

This is of particular concern when taken in the context of the increased reliance of publications on freelancers to cover even traditional goverment beats. If it were to become standard for freelancer contracts to deny journalists the publication's legal protection, we can only imagine what injustices might go unreported for fear of retaliation. No journalist should have to weigh the risk to their house and future against reporting facts that some might prefer to keep concealed.

It's impossible to determine how common any type of freelancer contract is at the moment. There are at least as many different agreements as there are publications, and no clearinghouse exists to guage the norm. However, because contract terms like this exist anywhere, independent reporters and photographers must be cautioned, and the organizations that serve as journalism's watchdogs must take the lead in pursuit of a solution.

— TJ Sullivan in LA
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Anonymous Christine Tatum, National President, Society of Professional Journalists said...

Hi, TJ!

Thanks for this post -- and for explaining some of the legal terms/contract conditions that "... many people are unqualified and, sadly, unwilling to challenge ..." The more people discuss the mess going on in the world of freelance contracts, the better.

As newsrooms continue to lay off and "buy out" veteran journalists and ratchet up their use of freelance labor, understanding these agreements is, obviously, going to become much more important to many more people.

Publications should be ashamed of themselves for saddling a freelancer with all legal liability should a claim be filed against the freelancer's work. But as long as freelancers sign such contracts, it's going to be difficult to make needed changes (again, I'm just stating the obvious).

I'd love to hear from you how, specifically, "the organizations that serve as journalism's watchdogs" might take the lead in pursuit of a solution.

In the last year, SPJ's executive director has researched extensively the possibility of lining up libel insurance for Society members who wish to purchase it. Such policies at this level are nearly impossible to come by -- but I haven't given up hope that SPJ will find a way to deliver. At least not yet.

SPJ, with freelancers specifically in mind, also has been working to build its Legal Advocacy Network. This initiative aims to connect the nation's media lawyers to journalists who need legal advice -- and/or some help pro bono or on the cheap. For more information, see www.spj.org/lan.asp.

Again, thanks for raising the issue.

Wednesday, August 29, 2007 8:25:00 PM PDT  

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