At the end of 2014 the ABSW conducted a survey amongst its membership, looking at their experience of contracts for writing and other creative work. This was part of a drive by the Creators’ Rights Alliance, of which the ABSW is a member, to secure parliamentary support for fairer contract practices.
Mike Harrison reports the outcome of the survey.
After the ABSW-CRA survey
What to make of the returns from our recent anonymous survey of contract experiences?
Of an ABSW membership exceeding 400 only 32 responded. Given that the questions allowed for quick tick-box responses amounting to ‘quite happy thanks’ the only safe conclusion is that there’s nothing statistically significant to be mined from so poor a turnout.
However, the survey asked for some narrative evidence and that did provide a partially coherent picture. Respondents told a variety of woeful tales, ranging from being strong-armed in negotiations, steady deterioration in contractual relationships and fees, and demands for expensive and sometimes impossible guarantees of the probity of their work.
A number of freelance writers complained of practices amounting to restraint of trade, with attempts to bind them to a particular publisher or agent. One said, “Agencies have asked me to sign contracts that forbid me to solicit or accept work of any kind from any of their clients, past or present. In one case this restriction was to last for two years after my work for them – a single article!”
A staff writer complains, “My contract states that I am not allowed to work for any competitor for six months after terminating my employment with my current company. As a science journalist, that's impossible.”
Then there’s the frequent gripe about indemnity clauses. In the past it was safe to assume that responsible publishers carried adequate legal insurance and would be willing to back a writer in any dispute. But modern contracts frequently require that the writer guarantees the accuracy of their copy and agrees to indemnify the publisher against all costs associated with litigation.
In most cases, the publisher also retains the right to decide how an action is handled and, given that it is at someone else’s expense, there’s a risk that they’ll extend the fight – and legal costs – to preserve their own image before the possibility of a quick apology and settlement out of court. A sustained action for defamation could seriously damage a writer’s finances so insurance is essential. And, remember, the softening of UK defamation law achieved by Simon Singh’s lobbying still doesn’t extend to Northern Ireland.
The NUJ’s Freelance branch’s own indemnity insurance scheme offers one of the more affordable solutions for writers put at risk by such clauses, though NUJ Freelance Organiser John Toner reports (at the time of writing) that so far there have been no claims against it.
That appears to confirm the rarity of defamation actions against publishers, further suggesting a thoroughly mean-spirited mindset amongst commissioning bodies. Adding defamation cover to their mandatory, and already comprehensive, public liability insurance would be a cheap addition, assuming they don’t already have it.
However, lest anyone takes that as a case for not bothering with insurance, John Toner also points out that the free legal advice that goes with the NUJ policy is well-used, suggesting freelances’ decreasing trust in their clients.
The indemnity demands being made on writers are not illegal but they don’t foster a very congenial working relationship and lead to strongly partisan ‘them and us’ negotiations. A few writers simply refuse to sign them, as did two of the survey respondents, sometimes losing jobs as a result.
There was evidence in the survey results of an occasional split of attitude between editorial and legal staff within big publishing organisations. Editors seem to show more sympathy for the plight faced by jobbing writers faced with corporate lawyers’ boiler-plate contracts.
One ex-news editor for a science magazine reported he was routinely required to ask freelancers to sign a contract which included a clause on indemnity. “A few freelancers (rightly) pushed back, and I willingly deleted the clause from their contract, but most simply accepted it. Now, as a freelancer, I often face similar clauses in the contracts I receive. I always ask for them to be removed, but on two occasions when the editor has refused (both with US publications) I have had to accept the situation, otherwise I would have lost them as clients.”
The dichotomy in corporate thinking is underscored by a writer and editor who reported contract negotiations which were initiated after most of the work had been done – an increasingly common complaint. “I was frankly gobsmacked by the doublethink involved – I was asked to trust the publisher completely not to exploit the indemnity clause, while at the same time they argued that, without it, I would have no ‘incentive’ to do a proper professional job!”
Right at the top of the writers’ gripe chart, mentioned in most of the narrative comments, is the near-universal demand for ‘all rights’ in copyright material. The practice denies a writer participation in any residual revenue stream and a refusal to sign over all rights without additional payment usually leads to no contract and no job.
However, for all the sense of a thoroughly debased marketplace for freelances, there were some glimmers of optimism in the returns. One respondent said: “In general I've been lucky in having reasonable employers – who take the attitude that they own the copyright to the published version of my work, but if I change the wording of the piece, it's a 'different' article, so I am free to use it as I like. As a result, I am often able to reuse and re-write material originally prepared for one publication for other purposes – and both sides are happy with this arrangement.”
But looking at the overall experience of freelancing today, another respondent summed up a very despondent feeling: “The system seems to try to destroy writers rather than try to help them get established. There are few entry jobs, so the least experienced are forced into pitching for freelance jobs, which are often offered at a low cost, full rights given basis. Too often even 'respected' publishers lie, cheat and abuse freelancers with unfair contract terms, verbal assurances and promises which never materialise.”
Freelances in other media are reporting similar bad experiences and an overwhelming sense that they’re being denied a proper share in the prosperity of the UK’s booming publishing markets. If ever there were a case for a code of conduct for freelance creative contracts, the survey seems to confirm it.
Increasingly, freelancing is the only stepping-stone into the media creativity markets. So my personal fear is that without some improvement in commissioning relationships, fewer and fewer talented folk will risk a life of struggling against what feel like unfair odds.
The formation of a new generation of creators will dwindle and the publishers who have profited from earlier resources will realise they’ve shot the golden goose. A lose-lose-lose situation if you even begin to consider the public who depend on the stuff for news, information, entertainment and the bed-rock of a national culture.
A snapshot of the survey results
• Thirty-two of the ABSW’s 400+ members responded
• The majority of respondents work self-employed as freelances or self-publishers. A majority are in a creative, rather than a managerial or research role. There’s a sprinkling of PhD students with sidelines in freelance writing.
• Roughly half said they had had some experience of bad contract practices, and for most it had happened more than once. Their experiences spread over a number of years. A few had successfully negotiated the deletion of what they saw as an unfair contract clause.
• Only eight respondents said they owned copyright in their most recent work. Worryingly, six said they don’t know who owns it.
• Similarly thirteen said they had given a licence to all rights on their latest work, only six limiting them, and nine opting for ‘don’t know’.
• Narrative comments make several references to agencies acting as middle-man suppliers to publishers while applying heavily restrictive terms to freelances to prevent direct access to clients.