Eight Important Principles in Negotiating Contracts

I often hear writers talk about the difficulty in negotiating contracts and how they can't get changes. Admittedly, some publications simply will not bend. However, trying to get what you want is always the wise move, because often you can, even with large companies. For example, I was recently negotiating with a web site owned by a large broadcast company. A number of the clauses were unacceptable to me, whether a measure conveying copyright or a provision that I provide rights to anything in my articles, which would include fair use quotes I took from other sites.

First step was to mark up the contract with what bothered me and, even more importantly, why. Negotiation is a process during which each side tries to convince the other of its viewpoint. I then spoke to the top editor of the site and explained my concerns. In virtually every case, he had not realized the nature of a problem, including the rights transfer, because he thought that there was a provision to use the material elsewhere.

Next, the editor forwarded my concerns, noted as comments or mark-ups in the contract, to their lawyer. Eventually I got a document back with the lawyer's counter arguments. For example, when it came to copyright, the lawyer noted that his organization was in a better position to enforce infringement actions and needed the copyright to do so, which was an interesting line of reasoning that I had not heard from a publisher. In another case, I mentioned the fair use issue and he wrote, "If Sherman is contending that he is using third-party content as 'fair use,' what is the legal basis for that?" Again, a reasonable question and one that I would need to answer to get an agreement that did what I wanted.

Note that I say "did" and not "read." You always have to keep in mind what you are trying to achieve and what you are willing to give up to get there. However, given those restrictions, you must be creative in how you achieve your ends.

In terms of copyright, I countered with something that I said I'd seen at the New York Times Magazine - joint ownership. This is something I do not like to do, however, it is far better than turning over copyright and having no option to use the material. (I knew that I wasn't about to get additional money for their reuse and licensing of material.) The lawyer came back with something that I was told would be a take it or leave it position: transfer of copyright, but with the following added to the end of the rights clause:

Notwithstanding the foregoing, Contributor shall have a non-exclusive license to use the Contributor Content, and any derivative works created from any Contributor Content, in other blogs, and in books and other publications.

In other words, although I transferred copyright, I could resell and reuse the material in any other form of publishing I wanted and could create derivative works. It wasn't perfect, but good enough to make the venture worthwhile.

As far as the fair use provision, my argument that it was regular practice in blogging to take fair use quotes of news stories and blogs held sway, and any third party material was "subject to applicable 'fair use' principles," which, again, I could live with. (There was no way I would sign a contract requiring me to transfer ownership of something I didn't own.)

The entire process probably took three to four weeks - all during which I was writing for the site. Why? Because even if we didn't come to an agreement, they would owe me for what I had done and, in the absence of a written contract, my rights were extensive. The more material they had and liked without a contract, the more pressure they were under to reach an agreement with me.

I don't write this to pat myself on the back, but to make a few practical points on negotiating with publishers:

• Know what you want.
• Know why you want it.
• Know your fall back position and what you are ready to accept that will sufficiently support your interests.
• Dare to ask for everything you want at the start.
• Be prepared to effectively debate a point, with carefully reasoned arguments that use fact and logic to argue your case.
• Learn enough about applicable law to bolster your position.
• Be prepared to walk if necessary.
• Take your time in the process and present your position in writing, unless you can think quickly enough on your feet to handle a phone negotiation. (And even then make sure you've worked out your position and reasoning ahead of time.)

Trying to charm someone or make them feel guilty or complain that a given position is "right" will get you nowhere in the long run. Only sufficient fact and logic will reliably sustain you in negotiation.