|You’ve probably heard the old saying “Possession is nine-tenths of the law.” Well, in a client-writer relationship, the client possesses the money until the writer gets paid. Therefore, the client possesses the greater financial leverage. For this reason, you need a written agreement or contract to protect you.|
Many buyers in all sorts of fields are slow to approve, sign and return a vendor’s contract or other paperwork. And with a deadline looming, a vendor often begins work without a written agreement in hand and must rely on a customer’s goodwill.Working without an approved agreement or signed contract is folly, though. Should a dispute arise, or if your client simply decides not to pay the bill, you are left in a weak position. Yes, your client may have given you the go-ahead verbally. But an oral contract is close to no contract at all.
The basics of freelance-writing agreements are not terribly complex. At minimum, your agreement should specify the names of the client and the writer, a description of the project, the fee, and the due date. Beyond the basics, these tips will help you avoid problems and pitfalls:1. Describe in detail the project and the work involved to complete it. Indicate the word or page count and what research is required. Can you write from home and interview subject-matter experts by e-mail or phone? Or are you expected to travel to the client’s office or another remote location? Spelling out the specifics enables you to request a change in fee if more work is added to the task later on.
2. Ask for half the fee up front when you work on your first project with any new client. It’s the quickest way to separate the deadbeats from the legitimate clients. Be flexible in your methods of accepting the deposit. I myself take check, money order, wire transfer, MasterCard, Visa, American Express and PayPal.3. Specify the date and time that the copy is due. For example, May 22, 2011 by 3 p.m. Eastern time or sooner. If you don’t make it clear to the client when he will have the copy that day, he may call or e-mail you at 7 a.m. on the due date asking, “Where is it?” Another tip: If the deadline looks like it will fall on a Friday or even a Thursday, ask to change it to the following Monday or Tuesday. Doing so gives you an extra weekend to polish your copy and takes some of the pressure off.
4. Ask your client to follow up if she has not received your work by the deadline. One problem I’ve encountered is a client calling me a few days after the deadline and complaining that I missed it when in fact I submitted the copy on time via e-mail. When I say this, she is skeptical because somehow she didn’t receive or see it. Now I add the following to my agreements: “We do not miss deadlines, so if you have not received your copy on the date it is due, please call us immediately so we can resend it.” It then becomes the client’s responsibility to make sure she received the copy by deadline.
5. Indicate what you need from the client to meet the deadline. Another problem is committing to a deadline only to have something on the client’s end hold up the project; e.g., the client has not provided specific background information you need to complete the job. I address this in my writing agreement, too, as follows: “Once we agree on deadlines, they are contingent on getting your go-ahead, the background materials and deposit by [fill in date here]. Bob’s schedule fills up quickly, and we regret that we can’t hold dates without payment.”
6. Outline your revisions policy. One of the biggest issues in freelance commercial writing is revision. If the client doesn’t like the copy and wants changes, does he get them for free or does he pay extra? How do you protect yourself against a client who asks for seemingly endless revisions on a project that seems to drag on forever?
The answer is to specify your revisions policy in full in your agreement. Do you charge for revisions? At what rate? If you include revisions for free in your quoted price, how many rounds of revisions are included?Is there a time limit on when you will make the revisions? For instance, can the client come back to you six months after you’ve been paid for the job and expect you to do more work on it for free? When the client calls you with a request for revisions, how quickly do you promise to turn those revisions around?
7. Include a kill fee. What happens if the client cancels midway through the project? How much does she owe you, if anything? Your contract must include a section on kill fees that determines your payment should the job be cancelled. A typical kill fee: If the client has paid half the fee up front, the writer keeps it when the client cancels.
8. Indicate what you plan to do with the client’s background material after the project is completed. This is a small matter, but what happens to the source material the client provides to the writer once the job is finished? You don’t want a client calling months later and asking for its return. My contracts state: “Background material sent in preparation for copywriting assignments is not returned to the sender unless specific arrangements have been made in writing prior to the project.” This clause frees me from having to retain client files forever.
9. Specify who will handle research. What about research? If Internet research is required, does the client or the writer handle it? My contract states: “This fee is for copywriting, which we define as creating text for promotional material from content provided by the client. Research to create original content if needed would be an additional fee to be quoted separately.” This isn’t an issue in most cases, but it could be for a white paper or other lengthy document requiring content on a technical or obscure subject.
10. Include a caveat that you cannot guarantee results. What happens if you write an e-mail marketing message for a client and no one responds to it? The client may feel you have failed and therefore not want to pay the balance of your fee. On the other hand, you did the work you were contracted to do, and the client approved it before sending it out.
I have a “Results” section in my agreement that discusses this possibility in advance: “There are many factors in your marketing—product, market, price, list, demand, consumer preferences, major events—that Bob cannot control. Therefore, while he can and does guarantee your satisfaction with his copy before you test it, he does not promise and cannot guarantee specific results.” Be sure to include something along these lines in your agreement.11. Make sure the client takes responsibility for submitting the copy for legal review. Who is responsible for making sure the copy complies with any regulations governing advertising in the client’s particular industry? While the copywriter should strive to be aware of and comply with the law, he cannot take the final responsibility. My agreement says, “Although Bob makes every effort to make sure your copy complies with the law, he is not an attorney. Therefore, it is your responsibility to submit all copy for legal review.” Clients, especially larger companies, will typically have an attorney on retainer or even a compliance officer in-house; smaller ones may not.
12. Specify that the client is responsible for final proofreading. A colleague of mine ran a small ad agency in which he provided a turnkey service—copywriting, graphic design, photography and printing—of marketing materials including brochures.
A brochure came back from the printer and the client found a typo in it. The client wanted my colleague to reprint the brochure entirely at the agency’s expense and asked him to eat the first bill. My agreement states simply: “You are responsible for final proofreading of all copy.” While this seems like a lot of details, it really isn’t; my agreements run a page or so in length. Some freelancers have multipage agreements in small type, written in legalese. I advise against this. If a client has to give your agreement to her legal department or attorney for review, she may be disinclined to hire you in favor of another writer with a simple, plain-English agreement.
In the good old days, before computers and fax machines, contracts were presented for review and signature in person or by postal mail. This created a “mail float” during which some clients pressured their vendors to begin work on a project despite the fact that the signed contract had not been received. “Trust us; it’s in the mail,” the client would say. Maybe it was, but how could you know for sure? If they in fact decided against signing it and you put in work on the project without a written OK, you could be left holding the bag for the hours worked.Today you can quickly get a signed contract in hand via fax, or get an electronic signature by e-mailing an unlocked PDF copy of the agreement. Another simple option is to send the agreement by e-mail and ask the recipient to indicate his acceptance in his reply. You can then keep that in your files as your approved agreement.
To draw up a contract means you and the client have discussed, negotiated and agreed on your writing fee for the project. The contract should include all terms and conditions, such as any performance-based royalty or other incentive you have agreed upon.Do you need an attorney to draw up your contracts? Probably not on each individual contract, as it would be cost-prohibitive. I recommend you write a standard boilerplate contract, which can quickly and easily be adapted to each client, and have an attorney check that master contract before you start using it.