AGONY ANT: LEGAL COVERAGE FOR FREELANCE COPYWRITERS

Q: “What legal forms (e.g. retainers, contracts) do freelance copywriters need?” – Brittany, USA

I think it’s fair to say that many of us don’t bother too much with freelance contracts because they’re just so pleased to get the work and don’t want to complicate things. But, as a freelancer, you are a small business and should be entitled to the legal protection that any other company enjoys. And, given the often precarious nature of a freelancer’s finances, it makes very good sense to protect yourself from unscrupulous (= non-paying) clients.

Perhaps for small, one-off, ad-hoc jobs you’ll do the work on the fly because it’s simply not worth the bother to draw up a contract. But for those jobs where you are investing a lot of your valuable time and effort on behalf of a client who you don’t know well it would be crazy not to. Similarly with a retainer: often there’s no need but sometimes it is actually beneficial to both you and the client to formalise a working arrangement as a way of clarifying each other’s expectations while delivering financial benefits to both parties at the same time.

Table of Contents

WHAT IS A CONTRACT?

A contract is basically a way of putting in black and white what you are going to do, when and for how much. But it’s more than that. It also sets down your expectations of the client – what does s/he need to do or provide for you to complete the work? And what happens if they don’t fulfil their side of the bargain?

Generally, there are seven parts to a contract:

Description of the job (the brief)
Here you detail all the basics of what the job is about. Most importantly you need to define what ‘completion’ means so that the client can’t drag a project out endlessly. Clearly outline how many revision stages there will be before you start charging extra.
Timings
Put down not only the final deadline but also key milestones during a project such as first, second and final drafts. Also, highlight what the client is obliged to provide at key stages – and what will happen if they don’t deliver on time. Basically, if they don’t give you the reference materials (or whatever) they promised on time then you won’t be able to deliver the final draft on time. Money issues
Here you need to set out how much you’re being paid when you’ll be paid and how. It might be an hourly rate or, more likely for a big project, a fixed fee. It’s standard practice to have a deposit paid at the beginning of a job which commits both parties to its completion. And then state exactly when final payment should be made (e.g. on approval of final draft). The ‘how’ means will it be paid directly to your bank account (hopefully!) but also, in some cases, which currency it will be paid in. As with timings, you should state clearly what the consequences will be if the agreed payments are not made. Delivery details
This isn’t so much ‘where to deliver to’ (although that’s important!) but what exactly should be delivered and how. Specifically what file format should the job be provided in, e.g. Word, pdf, XML, etc. Cancellation clause (‘kill clause’)
This is so important! What happens if the client pulls the plug on the job halfway through? You need to include a ‘kill clause’ stating a fixed fee that will be payable in this situation. The standard amount is 25% but you may want to have a graded tariff depending on how near the project is to complete at the time of cancellation. Copyright protection
Make it clear that your work is yours until it’s been paid for. Signatures
Obvious but worth mentioning, both you and the client need to sign and date the documents – one for you and one for them. Ideally, each page should be initialled as well to make it that little bit more watertight.

THE PROS AND CONS OF A CONTRACT: LEGAL COVERAGE FOR FREELANCE COPYWRITERS

The pros are:

It brings clarity to a project and cuts out unnecessary misunderstandings. It clarifies expectations on both sides and will help avoid disputes at a later date.

It provides legal protection to you both. In the event of a dispute, you have something in writing that clearly sets out the terms of your relationship.

It gives you control by preventing projects ballooning out of control. In wars it’s called ‘mission creep’, in advertising ‘project creep’ as the client tries to add more and more things that weren’t there at the outset.

It makes you look good if you have a professional-looking contract and inspires confidence in the client that you’re going to do a good job.

And the cons?

Hassle. It can be a bit of a faff to put one together and may not be suitable for very small jobs or for a job with a client you know and trust.

Occasionally a client might say No when asked to sign a contract. They’re probably the type of client you should avoid anyway!

It may cause a slight delay to the beginning of a project while you’re waiting for signatures. Then again, it could save so much time and heartache in the long run.

WHAT IS A RETAINER?

If you do the same kind of work repeatedly for the same client – such as writing for a newsletter or blog – a retainer might make sense for both you and your client. The client agrees to pay you a fixed fee each month for a defined amount of work (e.g. “write six articles” or something). Generally, that fee is paid upfront, at the beginning of the month. A retainer might also put you ‘on standby’ for a client so that s/he can always count on your availability for a certain number of hours each month. So, if and when they call you should be willing to drop everything to help them out.

THE PROS AND CONS OF RETAINERS

The pros

It gives you some financial security. Being able to count on a fixed amount of money coming in every month smooths out some of the ups and downs of a freelancer’s finances.

Under the terms of some retainer agreements, you could even get paid for doing nothing. It might be worth it to the client just knowing that you’re available at the drop of a hat even if they don’t actually use you every month. Sweet.

It helps you to plan better. Knowing that you have so many hours each month for a particular client means you can allocate the rest of your time more efficiently.

It can also be a way of ‘up-selling’ yourself. Once you get a portion of guaranteed work think of ways that you could add further value for the client. If the original job was writing articles for a blog you could move up the value chain by offering to put the newsletter online for them each month, respond to reader comments or become an editor who commissions articles from outside.

It’s good for the client as well, by the way. In return for the guaranteed work you might offer them a reduced rate. And they also get the benefit of a responsive service and the peace of mind that you are always there for them.

The con

The retainer ties you down because you always have to be available for the client. Even if you get a big project in or you’re suddenly swamped with work you still must find time to meet your obligations each month. And if you’re thinking of swanning off on holiday on a whim remember that you will still have to do what you promised to do.

WHAT TO THINK ABOUT WHEN DRAWING UP A RETAINER

Most importantly you need to define exactly what you’re offering. It should be absolutely clear what you are and what you’re not offering for that fixed fee. You could also draw up a price list of options for your client. Above all, put everything down in writing. As with the contract you need to cover things like: payments, key dates, the nature of work required, what you expect from the client and how to end the agreement. Best to make the retainer valid for a year at a time and then you can always review your prices annually.

AND FINALLY, SOME EXAMPLES

Here are a couple of downloadable forms – a contract template and a retainer. The language is very formal but the content is good so you could use them as a starting point for developing your own agreement. (Thanks to the nice people at docracy.com)

The project contract: www.docracy.com/8054/work-for-hire-freelance-writing-agreement

If the client doesn’t want to go to the bother of a full-blown contract at least put in writing what you see as the parameters of the job. In the event of a dispute, it’s better than nothing: www.docracy.com/10zhh99vdi/freelance-writer-assignment

And here’s the retainer agreement: www.docracy.com/9jsoij4itk/retainer-agreement