NBC Universal and Nielsen Want Your Money, Too

Just the other day I mentioned how Time Inc. wants you to take less money for prompt payment. Well, Gawker, which wrote about the first issue (and eventually noted that while one freelancer claimed payment within 30 days, another said that it generally took 60, making the discount-for promptness plan more economic arm-twisting) has another. NBC Universal is doing the same thing. There is one big difference: while Time may make you wait for 60 days normally before dropping that fiscal ort you so badly need to pay the bills, NBC Universal will either make you wait 75 days or cough up 2.5 percent of the money you earned in 15 days. Oh, and as my BNET colleague Jim Edwards noted back in March, Nielsen says that it won't pay until 75 days unless any of its vendors (which included, but is not limited to, freelancers) give up 3 percent for payment in 15 days.

And for the people who want to argue that discount for early payment is normal business, I'll say that it is, but here's what is considered normal:

• The service provider is the one offering the discount because that fits into its business plan.


• The service provider sets its own rates and doesn't have to ask, "And what do you pay for this?" So its rates can reflect a more realistic view of what a discounted fee would have to be to remain worth the work. It also sets fees to recognize the many companies that don't pay in a timely manner.


• The service provider also has late penalty fees, so if the client doesn't pay on time, more gets tacked on - like 2.5 percent a month or so.


• What doesn't happen is a fucking cheap-assed financially conservative megacorporation setting rates that haven't moved in so many years that archaeologists line up to study them recognize the economic pressures on today's business, and then putting a gun to someone's head holding payments for long periods of time to twist people's arms convince freelancers to take a discount.

Bastards.

Time Inc. Wants to Charge You to Pay Promptly [UPDATED]

Writer colleague Dana Kennedy passed this information on, and even if you don't write for any of the Time Inc. properties, be prepared for a blood pressure boost. As Gawker reports, Time Inc. is offering to pay freelancers quickly -- if they are willing to take less money

Under the cheery subject heading "Time Inc - Accelerate payments at year end!", it outlined the company's PayMeNow program, whereby you can speed up payment of your invoice for a fee, kind of like when you get a payday loan at the check cashing place down on the corner so you can afford to buy lottery tickets for the week.

There's a whole rate sheet of how much you give up to see that check earlier:

• 25 days - 0.5 percent
• 20 - 1 percent
• 15 - 1.5 percent
• 10 - 2 percent
• 5 - 3 percent
• 3 - 4 percent

Nice, eh? Now understand that discounts for early payment are nothing new in corporate transactions. They have been around for, oh, I don't know, I'm guessing hundreds of years. Certainly many, many decades at the very least. But there's a difference between something offered as a general part of negotiation -- and usually offered by the seller -- and something tossed out by a chronically late payer who is trying to manipulate individuals who often have the least fiscal power to make totally reasoned decisions.

And, if you think about it, this behavior is even more contemptible and the evidence that the corporate suits there are a nasty bunch of sneaky little shits. It's almost the end of the year. Guess what companies generally do at this point if their fiscal year ends with the calendar year? They accelerate payments anyway to reduce tax liabilities. Want to guess when parent Time Warner Inc.'s fiscal year ends? Yup, December 31st. So they're laughing all the way to the bank - literally - because they know they're going to try to push all this stuff out anyway, and they want to shave a little extra profit out of the pockets of freelancers. And my bet is that they take the discount and are still late based on the payment schedule. Merry Christmas. Ho, Ho, Fucking Ho. Bastards.

[UPDATE: The original article suggested that Time was paying in 30 days already, which seemed faster than many large corporations. A new Gawker post says that they heard from another freelancer who said that it usually takes closer to 60 days. I've heard from a couple of Time Inc. freelancers that the online payment system works well, but having dealt with one at a big client in the past, where the editor didn't bother to process the paperwork, I can pretty authoritatively say that even with the best accounting system, the company can leave you screwed. It's one reason why you want to get a definition of what acceptance means. Is that "yup, we're going to use the piece," or "you have to wait until the Big Man in the Sky reaches down, lights a burning bush, and allows your manuscript to pass into the publishing promised land"?]

Image via Flickr user DanCentury, Creative Commons license.

8 Points to Smarter Client Contracts

A friend and colleague recently asked me if I had a contract template that I used for clients. I said that I didn't because my contracts are generally heavily tailored to the specifics of an engagement. However, I was able to point to seven different clauses that I like to include to protect myself. Here they are, plus an eight that my publication and IP lawyer, Anthony Elia, had suggested for future use as I was suing an ex-client:

1. Whether a work-made-for-hire contract or not, no rights should transfer until you get the final payment for the job. If the assignment consists of multiple parts and the client pushes back, you might consider transferring rights to parts as payment for them is completed, if you can separate them out. But if a client balks completely on such an arrangement, I walk. If they're not willing to say that they can only use material if I'm completely paid, then they're saying that they're not interested in upholding their end of the deal. I have better ways to spend my time.
2. I charge late fees for payment in arrears. Again, this should be a non-negotiable. Companies want to charge me late fees if I don't pay on time, and I don't see why I should underwrite someone else's financing.
3. Have a clean definition of the work and then an hourly fee for requests beyond that definition. If the client cannot agree to a clear work specification, then it is going to ask for more and more to be done for the same fee, either trying to push the boundaries to get more for its money or because it is confused and inefficient. In neither case am I willing to give something away for nothing in return. That's not to say that I don't do favors for regular clients. I do. But that's with an ongoing relationship where I get plenty of return for my investment.
4. Give a hard deadline for reviews, with drafts past that date getting contractual automatic acceptance. Generally, payment in corporate assignments keys on acceptance of parts of a project. You do not want to be waiting for money because someone or other won't bother to look at what you've done. This protects you against that, largely by acting as a goad to get the client to do the reviews it owes you. Make the deadlines reasonable, but not too long. I find that two weeks max is a good timetable for getting a review done.
5. You are the service provider, so make sure that any legal disputes, whether state or federal court, are in your home jurisdiction. You don't want to go to another state to sue for money owed you. Similarly, get your state's laws as the ones governing the contract. If the client won't go for that, then eliminate the requirement completely. Don't allow them to insist that you agree to jurisdiction in their area, because, frankly speaking, if legal issues come up, you're most likely to be the plaintiff, not the defendant.
6. Explicitly address expenses and any other item that might reduce your income. Don't expect to work such things out after the fact.
7. Make deadlines offset from when you actually get the expected payments. So if the first should be in a month, make it a month after you have the signed contract and deposit. Before you've signed the contract is when you have maximum leverage in negotiation. Once you start work, your leverage decreases exponentially with the time you've put in.
8. The final point is to try to include a clause that has the loser in a legal action responsible for the legal costs of the winner. I had thought this a danger, but my lawyer pointed out that the chances were overwhelmingly likely that I'd be the one having to take action, and getting costs covered if you have a good case becomes a goad to getting people to settle

A Disastrous Marketing Success

Today I was planning to attend a teleseminar given by two experts in negotiation, one being Jim Camp, author of the book No, which I've mentioned on this bog and recommended to people, and a former FBI special agent who was a main kidnapping negotiator for the agency. In fact, I was supposed to listen to it at the very time I'm writing this.

So why am I not learning something useful instead of writing? Because the teleseminar was a complete and total technical mess. At first all you could hear was a moderator, incessant beeping as people came onto the line, and, eventually, Jim Camp who had to dial in through some separate means and tell the moderator that neither of the guests had been able to be heard, as everyone who dialed the published number was automatically put on mute.

Oops.

They discussed it back and for a minute or two, constantly being interrupted by all the beeps, an experience that you've probably seen only as a small annoyance if you've ever been party to a conference call. Camp suggested that perhaps everyone could drop off the call, give the guests five minutes, and then call back. This was at around quarter after the hour.

I tried hanging up and giving it a few minutes. The beeping was even worse than before, and one lone, thin voice kept saying, "Hello ... hello ... hello ..." The very popularity of the event and its resulting size was causing all the problems that drove me and, probably, thousands more away from the call and onto something productive. That became a complete waste of everyone's time and left Camp's organization appearing unable to handle operational planning. Not good if you're in the negotiation business.

Double oops.

If you're going to be successful as a freelancer, or even help a client work on a marketing campaign, then you need to be cognizant of the problems brought about by success. I'm sure you've heard people, who were surprised by and unprepared for a strong positive response to marketing, say, "It's a good problem to have." The only difficulty with this phrase is that it's completely wrong. It's not a good problem to have. It's never a good problem to have.

There's nothing good about being unprepared for success. In fact, to call it a good problem is like a backward expression of sour grapes. Instead of writing off failure as something you wouldn't want, you're writing off not being ready for having succeeded. This is only an excuse for a lack of planning and anticipation that are part of smart business.

When you are planning any event or activity -- marketing campaign, customer relations outreach, technical conference, or what have you -- these issues need to be brought up at the onset. As part of the creative team, you should at least ask some of the questions:

• Is there an upper limit on the number of people who should be invited? (Should there be a response mechanism that can restrict the eventual number?)


• Are there any technical restrictions that might require particular directions? (Should we tell people to press the number 6 immediately after getting on to mute themselves?)


• Has anyone tested the venue? (Is it possible to can the beeps?)


• Is there a better mechanism to deliver the content? (Did anyone consider an interview format podcast for release on the web, possibly only to people who would fill out a form and qualify themselves?)


• What are alternative plans if something doesn't work as required? (Is there a separate number for those who need to talk?)


• If everything blows up, are there at least tentative emergency response plans that might help repair some of the damage and transform the experience into something useful? (Will someone tape a podcast, make it available, and provide an additional white paper or some other inexpensive-to-produce and yet valuable-to-receive apology?)

Too many freelancers see themselves as just writers, which means they're wasting their talents and experiences as well as not communicating the value they can bring to a business relationship. That translates into not being taken seriously and not being paid what they are worth.

Don't fall into this trap of poor self definition. Go off and consider what skills and abilities you actually bring to an engagement, whether corporate writing or editorial, and how you make a client more successful and keep the company or person from wasting money, time, and energy. Look at the hats you actually wear during the process, and in a relaxed way make sure people realize this. Why be a "freelancer" when you could realize that you are a communications consultant and be paid accordingly better?

Why Low Pay Is Bad Pay, No Matter What the Hourly Rate

I recently saw another discussion on a writers' board about pay rates and whether it matters for periodical writers how low the amount per word is so long as you can do the work fast enough. That argument may be fine for the occasional piece, but it doesn't hold up over the long run for a few reasons.

I've written about one of the reasons before, the overhead inherent to obtaining, scheduling, and managing assignments, comparing long assignments to shorts:

But say that you are accurately monitoring your time. Why not then do a lot of shorts to make your income? Because there's another consideration - the time for marketing, billing, and overhead. If you make $500 for a short, then four of them pay as much as one 2000 word article paying $1/word. The amount of writing time might even be comparable. However, figure that a 500 word piece really needs two to three sources to come across as sold. You're now booking 8 to 12 interviews, versus the 6 or 7 that might be all you need for the longer piece. That means more time interviewing and scheduling your time.

You're also going to spend about as much time writing a query for a short as you would for a longer piece, plus you have to generate the ideas and pitch editors. So your marketing and sales time has just quadrupled. If you make a lot of your income from shorts, then you're probably spending many more of your hours marketing, interviewing, managing your time, and billing (and collecting). Now you see the real drawback - not the hourly rate, but the time you must invest to do enough shorts to make a living.

Instead of shorts, substitute low-paying assignment and the point is even more applicable. Not only is there the overhead, but, presumably, you still have to do a credible job on what might be running 1,500, 2,000, or more words.

That leads me to my other major point, which, I'm sure, will tick off some people. To make money at a low rate, you generally have to cut corners. You don't undertake the extra interviews and research, put in the extra draft and polishing, nor do the other things that let you create better pieces. I know this because much of the language I hear from those who tout the high hourly figures of their low pay rates is how they "knock these assignments off."

If you're depending on speed to make a good hourly rate to make up a bad word rate, then you'll have to cut corners eventually. That's because the client doesn't value the higher level of work enough to pay for it, and you can't provide it without subsidizing that work out of your own earnings pocket. But if you do too much of this, then all of your clips are of those 1,000 word pieces with one or two sources, which are probably not going to get you the higher paying work because it's not just about how well you write, but how well and how thoroughly you research and report. On those occasions when I assign and edit, I wouldn't consider someone whose samples were filled with pieces like that, because I assume that the person isn't willing to make the effort to do something better. In the past, I've found that when someone has spent time wanting to quickly get articles done and get out the door, they start to lose the work ethic necessary to produce higher quality results.

For those who want to disagree, start by asking yourself how many sources you use for a normally reported piece (not a Q&A). The lower the number, the less you bring to an article, and no amount of clever writing can make that up. And those who stress that they make money with low-paying assignments should look at two figures: their annual income and the percentage that these low-paying assignments represent of their total assignments. All the writers I know who make reasonable amounts of money (enough to support you and your family if necessary) focus on higher paying work and not rationalizing why low pay is really not that bad.

The Tyranny of the Going Rate

When it comes to work or markets that are new to them, many writers cast about for the "going rate." This is the magical average number that is supposed to inform them on how to price their labor. Although I do agree that, when used wisely, market information is a great help. But wise use is difficult and often overlooked by writers. And then, going rates do more harm than good.

There are a few ways in which going rates can hurt the marketing and business planning of writers. The first is that without a number of qualifications, they are illusory because there is no single market. Here are some of the questions you would need to ask before knowing whether the money one writer received was applicable to your situation:

• What is the level of experience or specialized knowledge necessary to do an assignment?
• What are the expectations of the clients?
• What are the demands of the work?
• How large is the client and what will it demand in working processes?
• What is the industry?

In answering the questions, you cut the market down to a more specific segment. When you can accurately describe the work and the circumstances, a market rate may exist, but that's rarely what you get from other writers, who also may not be considering whether their experiences and circumstances match yours. In the end, you could have a situation in which you're effectively comparing a local lunch counter with the largest fast food chains as clients.

Focusing on a going rate can take writers out of the necessary consideration of their own personal rates. Do they have the experience to charge higher numbers that more seasoned colleagues might command? Have they even calculated their own bottom-line hourly figures to know the smallest amount they can accept while adequately funding their own businesses? If the going rate for a type of work is smaller, then it won't matter unless you're already making the money you need and you're taking the assignment for other reasons, like getting clips on a new-to-you topic.

Immediate attention to the going rate can also play havoc with your negotiation. In negotiation theory, you first look at what you need and want. By starting with prevailing rates, you assume that the rates are as universal as you think, allow others to set your business model, and put yourself at the mercy of a general atmosphere in which supply has so outstripped demand that the average pay is ridiculous. This can subconsciously bias your negotiation strategy, even when you're absolutely sure that you're a clever negotiator and that you wouldn't be adversely affected. Not only could you, in all likelihood, you will because it changes your emotional state.

One major reason that people ask about a going rate is that they don't want to leave money on the table. In a well-conducted negotiation, you look at what I call the value equation -- what you want, what the other person wants, what each of you can offer, and the value you each hold for what the other has. No seasoned businessperson is going to pay you more because others are getting more. That line of argument is no more useful today than it was when you said to your parents, "But everyone else gets to do it!" You can only get more by showing enough value that the client is motivated to pay to get it.

Finally, even if you do get answers from writers, it's generally two or three, and they may be repeating some numeric mantra that they have heard in the past. That does not make a representative sample, so you still don't know the going rate.

Can you use going rates? Absolutely, but only when you can precisely determine them, your negotiation practice is solid, and you are confident in your abilities to ultimately please a client. Ironically, at that point you have far less need of market rates because you know your own worth and are confident in asking for it.

More on When Someone Asks You to Take Less

Today in my blog, The Reluctant Negotiator, I covered the question of what to do when a client asks you to take less. I'm making a note here because it's an important topic for writers, and also I had an additional exchange with Peter Bowerman that might also prove useful.

Someone had pointed Peter to the negotiation post and he left a comment and referred back to a post he had written on the same subject back in January. He was wrestling with the issue of whether to lower pricing on a job to a client new to him, because he had noticed business slowing a bit this year and wondered if people weren't becoming more price sensitive.

I just left him a comment that I think could be useful to other writers as well, because it's easy to run off-course when making these decisions. Here's my response to him:

Peter, I saw your comment on my blog and so checked out this link to your earlier post. Given the way you described the situation, I think you might be off in the way you're approaching this, for the following reasons:

1) Yes, economic times are bad, but not everyone is doing badly, and not everyone has a smaller budget. If you drop your price in advance, especially with someone you haven't' worked for before, you weaken future negotiations and might even be doing so for no particularly good reason. Don't judge someone else's bank account by loud sounds of panic from third parties.

2) If someone is primarily motivated by costs, then the person will keep looking to cut costs, extending the pricing negotiation throughout the length of the project by asking for more of this or that, being slow on payment, and so on. It's not necessarily the type of business you want.

3) Don't let the mention of other writers bother you. Clients are almost *always* looking at various solutions and providers. To bring it up is a negotiation tactic in which the person thinks he or she will get a better price. So send your regular price and they will still think they're getting a break because they don't know what you'd normally charge.

4) Rolling back pricing because of the economy only makes sense when you get the client to appreciate the value of the concession on your part. If you haven't done business before, they don't know they're getting a break. You'd need to get them to understand what you *would* have charged and that you're only doing this because of the economy. And, as I think about it, that argument sounds really weak to me. Better you offered it as a one-time discount for a first project.

5) If you are giving in on price, is there something you can get in return? One writer on Freelance Success who had responded to my post there noted that she had gotten a guarantee of work over a year from an existing client that needed a drop in rate. Guaranteed work has a specific monetary value that you can calculate and then weigh as part of your decision process.

6) The answer to slow business is not to drop prices, because then you are branding yourself a commodity by the action. Instead, significantly increase the amount of marketing. This becomes particularly important for writers who are established because it's easy to get used to an incoming flow of business from referrals and repeat clients. What is happening is that your converstion from marketing to assignment ration is decreasing. To avoid losing income, increase the pool.

7) Also remember that many clients will complain about the economy because they're hoping to get more for less. It's not that they can't afford your usual rates. They just want to see if they can get you to drop them. Do so, and you'll never get them back up again.

Harlan Ellison on Being Asked to Work for Free

If you're a writer, you need to listen to Harlan Ellison. This brilliant author and speaker (I had the pleasure to hear him lecture, if you can call what he does "lecturing," in college) has one of the best understandings of value paid for value received in the business. Much of his

"They always want the writer to work for nothing. And the problem is, there are so many writers with no goddamn idea that they're supposed to be paid every time they do something. ... I sell my soul, but at the highest rates, the highest rates. I don't take a piss without getting paid for it." Much of his industry reputation for being difficult is a direct reaction to his refusing to smile while being screwed. (Many who have worked with him have said that he's far more mensch than maniac.)

The next time you feel yourself weakening when asked to give more rights, take on spec, and otherwise bend over for the convenience of some corporation with an immense income and highly paid executives, listen to this.

Negotiating Client Budget Reductions

Yes, economic times are tough. Yes, some industries are particularly hard hit. Yes, some number of clients are going to push back on rates, crying that they are in budget difficulties. And, yes, it's true: many are and might not have more money to spend.

But, as I've written before, no, your first reaction should not be to drop your prices in a bid to make clients happy. There are a few reasons:

• Some clients may be desperate, but there will also be many interested in knowing how much they can save by crying poor.
• Anyone who wrote for technology publications in the late 1990s knows that when the dot com bubble burst, specialized magazines were going out of business right and left, and the remaining ones reduced their rates. (To be fair, the rates were related to high demand for writers and their relative scarcity to the work load.) If a client says, "We'll pay less until times are better," realize that the probability that times will get better enough for them to raise rates is about zero.
• Clients often talk, and once you're known for writing for those who pay less, the ones who pay more may want to revisit your rates.
• The more you give in on pricing, the more you have to work to make your living. Eventually your life is there to support your work, not the other way around.

To reduce your rates is to devalue what you are doing. There may be times it is necessary, but that is probably a rare occasion. More often you can try renegotiating to balance out the value you are giving up. Here are some approaches that can work:

1. Reduce what you offer -- Look to see where you can scale back what you provide to the client. Mind you, this is something you do out in the open so they understand that they are getting less because they are paying less. Maybe you don't search for art, or write something shorter, or provide fewer options.
2. Better payment terms -- If budgets are smaller, it might be that the client can pay faster or pay for a bank transfer instead of your waiting for a check to clear. Be careful, as some clients will promise anything knowing that the accounting department will work on its usually time frame.
3. Get regular work -- It takes a certain amount of time to find work. Get to some reasonable estimate of how long that is, and you can use your bottom line hourly figure to determine how much that time is worth to you. Discount an assignment by less than that, and you're actually ahead because you open more time for assignments and other marketing. So trade off a somewhat lower fee for guaranteed work.
4. Improve other terms -- There may be other conditions that, if changed, either improve cash flow, open time, or provide some other benefit whose financial value you can calculate. It may be that having more time to work on an assignment lets you manage your schedule more effectively. If you're doing work that requires outsourcing sections, it could be that you can have the client directly pay the other people (though you do face the potential risk of their making deals independent of you, which may or may not be a problem, depending on your business model). It might be that you can get money forwarded for expenses, rather than receiving payment after the fact.

As with all forms of negotiation, creative problem solving can take you a long way and even turn what could have been an income drop into a net gain.

Important Clause in Blogging Contracts

When I wrote about eight important principles in negotiating contracts, I mentioned a recent negotiation I undertook for some blogging work I'm doing. What I didn't mention is a clause that is of particular import in this line of work: traffic payment triggers. Many sites base their pay at least in part on traffic. Often, certain thresholds of page views result in a bonus. But accompanying bonuses can be an expectation of minimum traffic levels, below which a writer does not get paid.

I can understand trying to give writers incentives to pull in more traffic, and they can work to everyone's benefit, but there is a bottom line degree of marketing that the site owner must do. Yet, because many sites have implemented such a demand, there is some expectation of this being "reasonable." Obviously it isn't; asking writers to help create increased success is one thing, but expecting them to guarantee traffic unfairly shifts a responsibility of the business owner to the contractor.

I did find a negotiation strategy that worked. In the contract was also, as one might expect, a termination clause, giving either party the right to end the association with a certain amount of notice. I argued that as I am a professional writer, I must be paid if I'm producing the required work, but as the company could terminate the agreement without cause, it was free to do that should the traffic not meet its minimum expectations. Had they said no, I would have walked, even though there was an exemption for a number of months, as they realized that the site was still ramping up. Because I had already been doing some work during the negotiations, and they had seen a building of traffic, they were probably disinclined to have me leave. If they were happy to see me leave, then it was a relationship that wouldn't have lasted long anyway.

In contracts for online work, remember that practices are still developing, and writers overly anxious for exposure and an outlet have often encouraged ones that are simply untenable for a professional. Don't get outraged. Instead, Break apart the roles as laid out in the contract, contrast them to accepted basic business customs and look for other protections that the contract gives the publisher.

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.

A Disdainful Remark for Your Next Difficult Negotiation

The next time someone expects you to be thankful for peanuts, and you don't feel the need to curry their favor, try the following:

Oh, sorry, I think you're under a misapprehension. I'm a feelancer, not a freelancer.

Fear of Phoning: 5 Techniques to Reduce It

From time to time I see writers posting online messages about feeling afraid to call clients. Personally, I think it's a mistake to simply avoid the situation by using email for several reasons:

• Constantly avoiding what you fear only strengthens the emotion's grip on you.
• Editors often ignore email, or the messages get pushed into a spam filter, leaving the writer wondering why there is no answer.
• Sometimes the phone is the best form of communication, next to being in-person, and to avoid it is to give up an important marketing and sales tool.

I often see another writer answer something to the extent of, "Oh, but you're great, so just call. Don't be worried about it." Tell that to the person in the middle of fear. It may sound good, but the results can be exactly the opposite of what the encourager might want. Instead, here are some approaches that can be helpful. None of them require you to directly confront the fear, as often the most effective approach is an indirect one that lets you focus on intellect or action, both of which offer you far more control:

• Write it down One of the ways the fear of phoning comes out is the sense that you're babbling and sound like a complete loon. So write down all the points you want to make in roughly the order you want to make them. When you're prepared and know what you have to say, then you can stick with that, rather than trying to wing it.
• Take your time There is no rule that all negotiations happen within one sentence, let alone one conversation. Take the time you need to make your points. If someone comes up with something you're not ready for, say that you have to give it some thought and plan a subsequent discussion on the issue.
• Schedule ahead It's tought to make yourself pick up the phone when you're in the middle of fear. But the entire situation is different when you've scheduled the call and you cannot simply not bother. Use the power of your own obligation to get you on the phone in the first place, when possible.
• You can always say no You tend to get on a call to conduct a negotiation, whether over a contract, an assignment, or even the attempt to get an assignment. Fear comes in part from the concern that you won't get what you want. When that happens, invoke the power of walking away. There is no single assignment that will make or break your career and no single job that will make or break your entire financial existence. There are always other clients and other work out there; remind yourself to reduce the pressure of how much you need this particular negotiation to go through.
• Do some marketing A variation on the previous point, you can become more confident when you have more prospects. Reduce your dependence by sending off a few queries before you get on the phone. The more choices you have in work, the more control you have and, as a result, the more confidence and less fear you will feel.

Work with every intellectual and physical tool you have in a way that increases the odds in your favor and reduces the power of fear.

HarperCollins Tries to Cut Writer Advances

According to the New York Times, a new HarperCollins unit, yet unnamed, wants to substitute profit-sharing for author advances. It also will try to eliminate the liberal returns policy that bookstores have, in my view, at least, unreasonably enjoyed for decades. (In what other industry do you get to hold onto goods for six months or a year, send them back at the last minute, and then reorder to effectively extend that ability to return?) This part of News Corp. will also "release electronic books and digital audio editions of all its titles":

Author advances and bookseller returns have long troubled the publishing industry. Best-selling authors can command advances so high that publishers often come away with slim profits, even for books that are significant successes. Publishers also sometimes offer high advances to untested authors in the hopes of creating new hits, but often those gambles do not pan out.

Ms. Friedman said the new group, which will initially publish just 25 titles a year, would offer “low or no advances.” Mr. Miller, who was most recently president of Hyperion, said he hoped to offer authors a 50-50 split of profits. Typically, authors earn royalties of 15 percent of profits after they have paid off their advances. Many authors never earn royalties.

My "headline" reaction was to think, "Cut advances? Is there anything left of them to remove?" But let's take a moment and consider the pros and cons. Relatively few books actually earn out their advances, so that lump sum - often pretty measly money - has become the only sum writers see. There is definitely a risk in dropping the up-front money.

Let's consider the other side for a moment. Advances become one of the gating factors in getting a publisher to take on a title. If your main work is writing books, then, yes, you need the advance. But if you're doing books on the side, it might be that you'd have an easier time selling a title in the first place. Also, even books that don't earn back the advance are still often profitable. Now, if you sell 10,000 copies, getting half of the cover price, and you're aiming, as the article says, at about $20 for a hardcover, that is a gross of $100,000. At 15 percent before tax profit margins, that would be $15,000, or $7,500 to the writer. Not tempting, I admit. Furthermore, you get a cut of profits, so all the costs are going to come out first, and must get paid off for there to be profits. You'll see your money later than before, and now you have to deduct the time-value of money - because you're waiting, you're essentially losing about 1.5 percent or more a month (what it would take in credit card interest to cover the missing sum).

A few more problems. Royalties are hard enough to follow, and that's when you get a list of the numbers sold. But profits? How can you tell when costs are actually paid off? What is the definition of profit? That is going to be an enormous problem; ask any musician or person working in Hollywood who finds that immensely well-selling properties end up never having an official profit. Chances are greater that you'd need an audit to follow along, and that is going to cost you money unless you can show that you're being shortchanged. Contracts will get a lot trickier, because the definition of profit and what can be charged to the costs of a book will become critical. Most book agents simply are not going to have the background and experience to negotiate these terms, because they don't know where the problems will be.

Those are a lot of potential problems. Is there a positive? I'm not sure. If a book sells well, you get the split of profits, not of royalties. Here's where the flip side of paying off costs comes in. As the costs are paid, more and more of the book sales are profit. Eventually, that $10, minus maybe a per-copy manufacturing expense of $1.50 and some amount of corporate overhead (call it 50 cents), leaves you with a cut of maybe $3 or $4 per copy, rather than the $1.50 you'd make with 15 percent royalties. But I suspect you'd have to sell a whole lot of volumes to hit that mark.

There's also a problem in the reporting of the Times that might make the gains turn out to be nothing. Consider this sentence:

Typically, authors earn royalties of 15 percent of profits after they have paid off their advances.

Actually, that isn't typical at all; 10 to 12 percent is more typical, and you're talking about the money coming in to the publisher, which is more than the "profits" would be. And for hardcovers, which is what they will be doing, I'd say 7.5 percent off the cover price is more typical. That means it's really easy to figure out how much someone owes you.

The upshot is that things are changing quickly, and you're going to need really good advice - from a lawyer, and maybe even an accountant - as you go into book deals. Forgo professional advance, and you're likely to make a deal which leaves you with less than ever before.

Using Information to Leverage Negotiations

Sometimes negotiation seems like a big hole that you have to fill, but you don't know with what. But a little bit of research, or even something you already know, can give you the edge you need. Here's a recent example I had. Although most of my work is in non-fiction, I write plays and had submitted a short one to a publisher that I knew was looking for material to go into a new anthology for actors. Six months ago I sent in some work, as it literally wasn't going to hurt anything I was doing, and might be an opportunity.

The other day I received an email from the editor of the book, saying that she wanted to include my play. Payment would be either $30 or five copies of the book. It sounds like an iffy deal, but I did some research, calling a playwright I know and asking if he knew the publisher and what he thought of the rates. He's put together at least one anthology in conjunction with the Kennedy Center in D.C. and said that they paid about the same, noted that the publisher was reputable, and echoed my own thought: it can't hurt, and it might help. He also suggested taking the money, because it could offer proof to the IRS that I actually am doing work in the dramatic field. A very smart suggestion.

But I still wanted copies of the book. I checked at Amazon.com and found that these books pretty much sell for list price wherever you find them. The publisher obviously was valuing the five copies as the equivalent of $30. However, I've done research into book publishing in the past and know that the actual unit cost of the book is probably going to be in the $1 to $1.50 range. So I made a counter offer: $25 and two copies of the book, indicating that I knew the marginal cost. Their answer? Sounds good. So I get a couple of copies and I also get the $25 to help establish a track record as a paid dramatist.

Had I not done the research into the offer, I would probably have agree anyway and picked either the money or the books. But I knew that the worst that could happen was the editor said, "Sorry, it's one or the other." But with the facts backing me, I also knew that they were still saving money over the straight cash payment. Although this is a small example, it shows the important principle that the more you know going into a negotiation, the smarter you can negotiate.

Handling Client Budget Moaning

Yes, economic times are tough. Yes, some industries are particularly hard hit. Yes, some number of clients are going to push back on rates, crying that they are in budget difficulties. And, yes, it's true: many are and might not have more money to spend.

But, as I've written before, no, your first reaction should not be to drop your prices in a bid to make clients happy. There are a few reasons:

• Some clients may be desperate, but there will also be many interested in knowing how much they can save by crying poor.
• Anyone who wrote for technology publications in the late 1990s knows that when the dot com bubble burst, specialized magazines were going out of business right and left, and the remaining ones reduced their rates. (To be fair, the rates were related to high demand for writers and their relative scarcity to the work load.) If a client says, "We'll pay less until times are better," realize that the probability that times will get better enough for them to raise rates is about zero.
• Clients often talk, and once you're known for writing for those who pay less, the ones who pay more may want to revisit your rates.
• The more you give in on pricing, the more you have to work to make your living. Eventually your life is there to support your work, not the other way around.

To reduce your rates is to devalue what you are doing. There may be times it is necessary, but that is probably a rare occasion. More often you can try renegotiating to balance out the value you are giving up. Here are some approaches that can work:

1. Reduce what you offer -- Look to see where you can scale back what you provide to the client. Mind you, this is something you do out in the open so they understand that they are getting less because they are paying less. Maybe you don't search for art, or write something shorter, or provide fewer options.
2. Better payment terms -- If budgets are smaller, it might be that the client can pay faster or pay for a bank transfer instead of your waiting for a check to clear. Be careful, as some clients will promise anything knowing that the accounting department will work on its usually time frame.
3. Get regular work -- It takes a certain amount of time to find work. Get to some reasonable estimate of how long that is, and you can use your bottom line hourly figure to determine how much that time is worth to you. Discount an assignment by less than that, and you're actually ahead because you open more time for assignments and other marketing. So trade off a somewhat lower fee for guaranteed work.
4. Improve other terms -- There may be other conditions that, if changed, either improve cash flow, open time, or provide some other benefit whose financial value you can calculate. It may be that having more time to work on an assignment lets you manage your schedule more effectively. If you're doing work that requires outsourcing sections, it could be that you can have the client directly pay the other people (though you do face the potential risk of their making deals independent of you, which may or may not be a problem, depending on your business model). It might be that you can get money forwarded for expenses, rather than receiving payment after the fact.

As with all forms of negotiation, creative problem solving can take you a long way and even turn what could have been an income drop into a net gain.

Hold the Response

When you're pitching yourself - which, if you're a working writer, is virtually every day in some way or another - you'll find times when someone doesn't seem interested, or doesn't seem to get what you're saying. There will be days when the temptation to snap back and the ignorant putz will be great. Refrain, as you'll only do yourself ill.

The other day I had a couple of Profnet queries out, and I got a response from someone whose pitch didn't grab me for the particular story I was writing. When I replied, he asked why, and I told him. "You've got me laughing," he said, going on to explain how I was wrong. And the guy was promoting a book on marketing. My reaction? Who the hell are you to say whether something is actually a fit or not? I replied in a rather terse and sarcastic way, and he was smart enough to apologize. He said that he had meant it humorously - and maybe he did. Maybe he didn't. It wasn't for me to judge, but I did appreciate the gesture, and he saved a potential future relationship, or at least opportunity.

Not all do. Sometimes you'll find someone, usually not a PR professional, react. The minute that happens, the person cuts himself or herself dead. It doesn't matter whether you're talking to a journalist, editor, or corporate buyer; the mechanism is the same. When you feel that urge rise, fight it down and substitute something more useful, like, "Thanks, maybe next time."

That doesn't mean there's never a situation in which you answer back, but it's rare. There are only two circumstances I can see it happening. One is when people are so outrageously abusive that for the good of society you must make them understand that they cannot walk over people with impunity. I've seen many writers talk about abusive contacts, and personally I suspect that perception is exaggerated. Abusive isn't someone being short or even insensitive - it's a level of harangue or attack that is hard to miss.

The other situation is when you are absolutely sure that an idea you have would be a fit for someone. Under these circumstances, you go back, apologizing and indicating that if it's really not of interest, you'll drop it, but you're sure that you failed in your description, because you see a clear connection, and that you'd appreciate another chance. This also should be extremely rare. If you find yourself doing it more than a couple of times a year, there is something wrong - either you are pushing your ideas into places that really are not a fit, or you're dropping the ball in your initial explanations.

Except for these rare times, learn to lose the battle so that you might come back to the same field another day.

The NYT on Economics of Television and WGA Strike

The New York Tiems has some interesting pieces, with different takes, on the WGA strike, and I pass them along as worth reading. One, on how superstar producers, directors, and actors, are sucking much of the profit out of the movie system, may or may not be completely accurate. It's based on a report completed for an analyst firm, but by a former studio person, so there might be some bias in the analysis. Then again, it might be accurate.

This article shows how the image of Hollywood writers being highly paid is a generalization based on a few big names. Most writers, it asserts, are getting by, but hardly rolling in dough. And here's an article on how the writers are finding print and web outlets while they wait for their work to get back to the screen. Just what you wanted: more competition.

A Comment on Writers Guild of America

Whenever news of Hollywood writers appears, there are usually a number of freelancers who experience envy: Why don't we have someone protecting our rights, getting us money, and so on? I have nothing against WGA West (the Hollywood-oriented division) at all, but freelancers need to realize that the circumstances are night and day in their differences.

WGA came out of the studio system for movies and television, and so had a tradition of the writers being employees. That's what allowed them to form a union in the first place, because US law prohibits independent businesspeople from forming unions. (I believe it historically comes from concerns about monopolies and price fixing.) But even today, the writers are technically employees - temporary, to be sure, but employees, nevertheless. Producers and studios have to deduct taxes, they pay money for benefits to WGA - and they, not the writers, own all pretty much all the rights to the work. For those who have never looked at a WGA standard contract, it's an informative experience. Notice that the writers are going on strike to get more income from additional uses of their scripts. The reason they're going on strike is because they don't own the rights in question, and, so, cannot force an agreement in other ways.

Some rights - like publication and the right to reacquire a script - do come back under specific circumstances, and you can see some of that here. But the rights that writers have to convey are extensive. The trade off is for money and benefits. In other words, if you think that being a WGA writer means getting the best of all worlds, you're not being realistic. When you're in business, you have to make trade-offs, and that's true whether you're writing an article or a screenplay. Indulging in wishful thinking and wanting an organizational knight in white armor to protect you doesn't get you anywhere and only breeds resentment. Instead of pining for what isn't, take your energy and focus on what it - the opportunities you have to negotiate contracts, to work with companies that are giving you what you think is a reasonable deal.

Create a No-Wordsmithing Zone

I hate the term wordsmithing - I have since I first heard it as a professional writer. The word, and the attitude it represents, are dismissive, placing the process of writing on the level of clever assembly line operations. You take what the client gives you and "massage" it until it reads better. There is that unspoken assumption that the writer adds window dressing only.

Of course this is absurd. Writing is about analytic thinking, the absorption of information, the analysis of this mental material, and the design and construction of an intellectual road map that can get readers from point A to point Z while leaving them feeling more intelligent than when they started reading. Of course they feel smarter: suddenly they grasp something. however, it's the writer that does the heavy lifting and leaves a paved path where once there was bramble and brush.

There was a time that I didn't flinch when I heard wordsmithing. That is no longer the case. When a client uses that term or something similar ("The document only needs a little editing."), I disabuse them of the notion. When a corporate client plays the editing card, I say, "No, you're looking to condense material and to find the most important points. That's not editing; that's writing." When an editor sits on an article for weeks and then suddenly surfaces and says, "I need this changes," I say, "That's fine - I can get them to you in X number of days."

The more you remain quiet when a client effectively dismisses what you do, the more value you help drain from your services and the lower you set your price. The next time someone asks you to wordsmith, point out that you don't polish words like so many pieces of silver plate. You're a writer, and the work takes time, skill, and proper compensation.

Watching Vague Contract Terms

Yesterday, I had an email exchange with a colleague who is very active in negotiating contracts and in writers issues. The topic turned to vague contract terms. it's a big problem in many contracts. A contract will seem to state something, and yet when you look closely at the wording, you see that much is left up to the imagination, or later argument.

A good example, as I often mention, is the term "acceptance." Many writers are satisfied when they see payment on acceptance in a contract. And yet, what does acceptance mean, when does it occur, and who at a client (whether a publisher or other corporation) must provide it? Does acceptance happen when the writer's contact thinks the piece will work? Does it happen after the questions have been answered? After final approval of the piece right before it's about to be used? We've just gone from acceptance happening shortly after the client reads the first draft to some time after a second or later draft, to effectively on publication. You can find such problems in rights clauses. For example, what does "electronic rights" actually mean?

Not everything in a contract can be pinned down to something that neither side could dispute. Courts recognize terms like "reasonable effort," though there is no hard and fast definition to which you could point. But much in contracts is hazy, and the miasma can lead to a cloudy future in a future dispute.

Reading many hundreds of contracts between the two of us, we're both convinced that most of the problems are not the result of lawyers' conniving, but of sloppiness and ineptitude. What lawyer wants to explain to a boss that he or she didn't nail down the terms of a contract in an unambiguous way? The bell curve applies everyone, and just as many lawyers are below average as above. However, that doesn't matter, because if you sign the mistake, you're stuck with it. Writers need to learn to read contracts - go through the language carefully and read it literally. Don't gloss over anything, and don't excuse yourself from asking the necessary questions by saying that you can clear them up in an email. You won't end up sending the email, and even if you do, it's the contract itself that you signed.

Address Problems When They Arise

A noticed a writer discussing a situation that has become too familiar - after taking an assignment and signing a contract, the client wants to change the terms. That in itself isn't necessarily unreasonable. Both you and the client (whether a corporation, a non-profit, or a publisher) anticipated certain conditions, but the client has realized that it made a mistake or that a situation had unexpectedly changed. Each side needs to remember that business, as well as life, has its twists and turns, and sometimes you need to be flexible.

However, changes may have an impact on how you and the client will work together. It may be that your contract addresses that; for example, it might provide payment by length, with additional material generating additional revenue. But what if someone wants to cut an assignment after you are in it and have committed the time that can no longer be contracted out to another client? Does the contract specify a minimum flat fee? Is there an expectation that as the scope drops, your pay drops? Does a flat fee bring into question whether an expansion will gain increased payment?

It's normal for questions to arise, and the time to bring them up is when they occur. Do not continue working until you resolve them. In the case I saw mentioned, the writer was asked to provide more material with an editor saying, "Oh, don't worry, I'll cut it down." Then, suddenly, the editor decided to run something twice the length and now, supposedly, had to get the top editor to authorize something. More likely, the editor in question was hoping the writer wouldn't say anything, and once the writer did, was now caught and didn't want to bring the situation up with the EIC. I had this happen recently with a corporate client that wanted to pretend that some commissioned work didn't happen, asking to be billed for one part and not another.

You cannot let this sort of situation pass, even if you think that you will permanently lose the client. Not only do you set a precedent, but you will feel terrible for letting yourself be bullied. There is a world of clients out there, and no matter what the size of one, you don't need to do business with it. Bring up the problem when it arises and don't meekly accept your fate.

This reminds me of a story an academic and consultant told me of a small manufacturer doing business with Wal-Mart. Over a few years, the retailer pushed for one concession after another. Eventually the small company said, "We're sorry, but it's no longer profitable for us to do business this way," and it walked away. The tiny margin on the volume didn't make up for all the hoop-jumping. Wal-Mart pointed out that it could find another supplier, and did. Interestingly, though, a couple of years later, the chain went back to the manufacturer, asking if it would be willing to take the business under better terms. What happened was that Wal-Mart had forgotten what the small company had remembered - that you have to look at the value of the entire relationship. When it went with another vendor, there were huge customer service problems that increased the overall cost of doing business, no matter how cheap the products seemed to be. But even if Wal-Mart hadn't come back, the company would have been better off, because it didn't back down from what it knew was its own interest.

Whether a client comes back or not is immaterial. There is more to life than money, and to keep your own self-respect, treat your business dealings as though you have the right to equitable treatment. If you won't, no one else will, either.

Go Ahead and Negotiate

I've seen on a couple of writers' boards recently news of freelancers being successful in negotiating with magazines. In one case, it was a writer pushing a major publication to significantly change contractual terms - and being told that most writers didn't bother to even ask. In the other case, someone pushed to get an assignment up from 50 cents to 65 cents a word.

No matter where you are in your career and no matter whta the circumstances, you can always negotiate and improve a business deal. There is almost never a downside to at least asking for what you want, and often you'll get at least a significant portion. That happened with me last week when a book publisher gave in on a number of terms that were bothering me. You won't know unless you try - and the more people try, the more pressure the publishers are under to change the way they do business.

It's popular to think that writers are a dime a dozen, and often publishers seem to think that way. But the smart ones know that they need ideas, and stories, and writers who can bring all of it together. Don't ask other writers what you can and cannot negotiate - find out by pushing in a pleasant and business-like manner. The companies that are unprofessional enough to walk away if you even dare ask for changes are the ones you don't want to do business with. The others will give in at least some, and possibly more than you realize.

On Rate Cards

I recently took part in an online conversation about rate cards. A writer had a client asking for one and didn't know what to put on it. My suggestion was to avoid rate cards entirely. When clients ask for rate cards, what they really seek, whether they think of it this way or not, is control over what you do and how you charge.

An hourly rate could potentially vary depending on the nature of the project ... and the client. And how can you quote a project rate when you don't know anything about the project's details? Recently I was asked for a corporate rate and I mentioned a range within which I'd typically work, but I can't offer a single number Some projects rquire me to deliver more value - not time, but value. They may require specific expertise or information. Why should I offer that at the same rate a simple press release or front of book article might take?

If a client wants something that completely predictable without offering any details as to what the work entails, then perhaps finding another client would be the best thing.

The Power of Silence in Negotiations: Part 2

Yesterday I mentioned the theory of keeping quite in negotiations. Here's an example based on a negotiation I recently did; the details are changed, but the essence of the conversation remains the same. Background: the client had talked about a starter rate, which I remembered. I had just completed a second assignment, and had been paid for the first but found that the company was messing up the second. Also, after my simple statements, I kept quiet and let the pressure build:

Erik: "I do need to get this pay issue straighted out."

Client: (embarrassed) "Yes, I know, I'll get to work on it - you did a good job on it."

Erik: "Oh, and I was also remembering that you had mentioned $1.50 as a starting rate."

Client: "Oh, right, I did. What do you usually get?"

Erik: "For this sort of work, it's a bit over the map, but $2 a word and more is hardly unheard of."

Client: "Usually I only pay $2 a word to subject experts who also happen to be able to write clearly. It makes life a lot easier on me. I see that as kind of the top of what I can do..."

Erik: "Tell you what, let's go to $1.75 for now. But I am providing some pretty good topics and solid stories to you, right?"

Client: "Yes, you are."

Erik: "So I want to keep the option open to return to the topic at a later date."

Client: "Ok, so the new assignment you're about to start will be at $1.75 a word."

I had the sense that she was putting her back against the wall on the $2/word, which is why I went to what I did. But I left the negotiation controlling the future and will be able, in another few stories, when she's really hooked on what I'm doing, to emphasize what I bring that the technical experts don't and push for more. Also, by making statements and then keeping quite, I added pressure to her and took the upper hand.

You do have to keep yourself under check and be willing to let the pressure sit on the client. If you let the tension get to you and start talking to let the person off the hook, you could find that you talk your way out of whatever you were hoping to gain.

The Power of Silence in Negotiations: Part 1

One trick that many practiced negotiators use will sound familiar to any journalist: keep quite and let the other person talk. In an interview, the practice often results in the interviewee becoming uncomfortable and beginning to say all sorts of things to fill the dreaded quiet. In that rush of words, you can pick up gold.

In negotiations, the gold you pick up can be more the folding currency type. Although a good negotiator won't get rattled by this, you'd be surprised at the number of people in corporations and pubications who really are poor negotiators. That is one reason you'll hear things like "the lawyers make us do this," because they really are sweating bullets. In negotiating, though, you go one step further. You want the other person not just to talk, but to talk first, at least in terms of substantial issues. When it comes to discussing rates, for example, speak up long enough to ask, "What is your budget for this project?" or "How much do you typically pay for this sort of project?"

You might get someone pushing back, asking "What would you charge?" or "What do you usually get?" But usually the person will start spilling inforation that is useful. You might learn that the rate is absurdly low from your view, which means you'll have to structure the conversation one way. Or it might be that they're open to larger fees than you realized, and then you continue the negotiation another.

There is a great story about how this technique can work. Thomas Edison and his advisor had brought the inventor's latest device - the ticker tape - to a famous banker. They asked how he might be able to use such a machine, but they already knew what the answer would be. The information would let the banker react more quickly and beat out competitors.

The banker offered something like $5,000, a considerable amount of money at the time. Edison and advisor kept quite. The banker - and mind you, this person would normally be an expert negotiator - immediately offered more and was greeted by more silence. This happened a few times until the guy offered something like $150,000 and said it was his final offer. They accepted and signed and the banker gloated becaue he had been willing to go as high as $175,000 or so. Edison told him, "I would have settled for $10,000."

When it comes to negotiations, silence is your friend. Tomorrow, I'll show an example from my own recent experience.

Book Review: No by Jim Camp

I've seen plenty books on business and writing, but this is one of the rare times I'd rate a title a must read. That isn't because the writing is so exemplary (though it's decent enough), but because you need to hear what it says. No: The Only Negotiating System You Need for Work and Home is about negotiation strategy and theory as described by someone who has been teaching and conducting negotiation successfully for large businesses for 20 years.

The title is striking and a deliberate contrast to the word yes, evoking the image of "Getting to Yes" and other win/win-based negotiation strategies. Camp argues that long-standing approach to negotiation actually leads to terrible negotiations. It's not that Camp suggests a take-no-prisoners attitude. On the contrary, he argues that a negotiation is a deal that any participant has the right to veto. That's the key - being able to say no to something that really doesn't work for you, and being able to hear no from the other party.

Win/win strategies can develop an unconscious premise that you must work out a deal - that both sides have to compromise. Therefore, you go into a negotiation ready and even determined to compromise, even if you don't need to. I had always thought of myself as negotiating in this style, but when I read Camp's book, I realized that it's not the case. Perhaps that's why I have taken so strongly to this book - it reflects my own experiences, including the need to be able to walk away from a deal, not appearing needy, understanding that you don't need to be liked by the other party, and recognizing your own value and not compromising on that.

Camp's emphasis is to take the emotion out of negotiation and, instead, to work from a reasoned approach based on sophisticated communication (like putting things in a way that speak to the other party's experience) and strong personal purpose. To his mind, almost everything is negotiation, including sales, and he has some interesting and, I think, valid views, like focusing on the process of what you are doing and not trying to control outcomes that you have no power over. An example is the sales person looking only at a quota and not realizing that sames come as a result of right selling effort, and to improve and expand the effort will, in and of itself, improve the results.

The book, just out in June, is going for as little as under $13 at Amazon. This will be one of the best and cheapest investments you can make in your career.

There Be Business Monsters

I recently read of a writer who was working for a publication at a fifth her normal rate because the editor mentioned the possibility of a regular job with them. At the end of the first assignment, suddenly the job was no longer a possibility – at that time, of course. But the editor liked the writer’s work and wanted to use her again, though there wasn’t as much money available for the new assignment. And the job might just be available in the future. So the writer debated taking it the second assignment.

Welcome to the real world of business, boys and girls. No matter how “nice” this editor seemed, she was shameless playing the writer three ways from Sunday. I’ll entertain the benefit of the doubt that she might have been acting unconsciously, but my money would be on her knowing what she was doing each step of the way. In fact, I'll go so far as to state that each and every one of you, possibly recently, has been manipulated by a client (editorial or corporate) that you liked.

That's not surprising. We're all human and we all manipulate others to some degree or another. But many people drop their usual scruples and constraints when it comes to business negotiation. You might hear, "Oh, don't worry, just write it long and I'll take care of it," which translates into, "Give me more material so I can pick and choose, and I'll happily reward you by paying no more than I need to." It could be, "Why, no one has ever had a problem with our contract." Or how about this one: "I'm sure accounting lost the invoice. I'll get on it right away."

Such people are trying to get what they want from you while keeping their budgets in control. Don't be surprised: It's what they get paid to do. Top that with wanting to avoid an angry outburst from someone ill-used, and you've got a monster client.

The real problem for many writers, however, is wanting to believe that the client is a friend. But a friend hopefully wouldn't ask you to put aside your livelihood as a favor one month, let alone ask you to do it again the next, all so the friend could benefit. With friends like that, who needs enemies? It's just another reason to take the emotion out of the business.

The Passionless Pursuit of Profit

I'm going to mention a few situations that writers often find themselves in. See if you notice what is common - or if you can see yourself in any of these situations:

• I'm so mad! I've sent yet another email to that editor and haven't gotten a response. If they want queries, why don't they have the courtesy to reply?


• The pay is really low, but I really like the editor and I want to keep the relationship.


• I really need this assignment, so I can't try to get changes in the contract, because I can't afford to have them decide not to use me.


• I'm so excited! I'm in the running for a big project. Oh, I really, really hope I get it!

The common thread is unrestrained emotion: anger, desire for friendship, fear, and excitement. Obviously there is nothing wrong with emotion, per se - it's a human characteristic. But when you go into business dealings from an emotional framework, you are toast facing a world of sharp knives and orange marmalade at 8 in the morning.

When your emotions run like a roller coaster through your working days, you will end up battered (if not buttered). Here are the possible outcomes:

1. Everything moves towards being a high or low, yanking you this way and that and making work much more difficult.


2. You create a sense of neediness in yourself and broadcast it to all around you. When that happens, you will come out on the losing side of any negotiation, which means any conversation with a client. If you cannot even consider walking away from the deal - the very definition of neediness - then you cannot improve it because the other party doesn't need to change a thing.


3. The emotional reaction causes you to take everything personally. That clouds your vision. Instead of seeing business relationships, you see personal relationships that really don't exist (no matter how much you like most of your clients). That puts a burden on your clients, who really aren't your best friends and shouldn't have to be. It also keeps you from treating them in a way that is appropriate and respectful.


4. When you react from emotion, you start making assumptions that may or may not be valid. That can lead you to expecting revenue from assignments that won't end up happening or not taking the extra step that might actually result in work that you've presumed is lost.

We all need to learn to take the emotion out of our dealings, and this is a day-at-a-time process. Start with reserving judgment. When you find yourself ready to jump for joy or sink into despair, tell yourself that you don't really know what it going on outside of yourself ... because you don't. It may be that something good will come of a conversation, or perhaps not. Eventually you'll see.

Also, very few of us are in the position of being in life-and-death situations. There will be other clients and other assignments. If you work hard at marketing, you'll get enough possibilities that some of them are bound to fall into place. Make it a matter of numbers, not a matter of how you feel that day.

Finally, for today at least, keep your work and home lives separate. Be cordial with clients while remembering that you aren't looking for friends and don't expect them to serve that function. When you need to make a hard decision, then it really is just a matter of business. Save your passion for your writing; use your head in your business dealings.

Personal Jurisdiction Term in Contracts

Although I'm not quite as available to do contract reviews as I was when on the ASJA Contracts Committee, I still do a few. A recent one presented something I had never before seen: personal jurisdiction.

I just looked up the phrase "personal jurisdiction" on Lectlaw.com (a free legal dictionary). Here's what it says:

If the court is being asked to determine any defendant's rights or obligations, it must have the power to make orders concerning the individual defendant. This is called personal jurisdiction. Personal jurisdiction is also called "in personam jurisdiction."

For a court to have personal jurisdiction over a defendant, the defendant must have been personally served (or have accepted service of the court papers) and the defendant must have at least some contacts with the state in which the court is located. No set number qualifies as the minimum; each situation must be analyzed case by case. If the defendant lives out of state, the court must look at the defendant's contacts with the state. Going into a state regularly to conduct business is usually sufficient for the court to obtain jurisdiction; sending child support payments to a state, without actually visiting the state, however, is not.

That explains why a publisher might use the phrase: if both parties agree to personal jurisdiction, it makes it difficult for you to take legal action if and when necessary.

First, you have to pay to have the publisher personally served if you’re suing them for anything, like not getting paid. Next, the publisher will argue that it doesn't go into your home state so that you’d have to go to its state to seek your money. This is far more expensive than suing in your own backyard (which is potentially expensive for the publisher). Usually when a company wants to try for this sort of restriction, it asks for you to agree to legal jurisdiction on its home grounds. (The contract may use the word jurisdiction or might use something that is equivalent, like agreeing that any legal disputes will take place in a specific city, county, or state.)

Using personal jurisdiction is the most backhanded way I’ve seen this pursued. My personal take is that if I think a publisher is trying to sneak one past me, I also assume it will try to sneak other things by, and I walk away and seek better business partners.

When Things Go Wrong, Negotiate

Yesterday I mentioned that when things are going well, you should continue marketing with a focus on things you might not ordinarily do. When things go wrong, yes, you market, but you might also consider negotiation. Instead of taking whatever life deals out, see how much you can change more toward your advantage. I had a real example happen yesterday when a publication decided literally at the last minute because of a mix-up on its end that it needed substantial changes to a story. It was pulling the article from the current issue and now the piece was no longer accepted. I did start gnashing my teeth and began writing an email to the editor because I couldn't afford to disrupt my cash flow further than a couple of previous setbacks had already done.

I started the email a few times - got a line or two in and tossed it. Remembering my goal - to get money - I knew that venting at the editor would do no good. So I carefully crafted a message saying that we needed to talk and that while I understood there was a mix-up on the publisher's side because I got the go-ahead from someone new who hadn't known of the history of covering a given topic, I couldn't add another invoicing cycle on top of what I had already waited.

That was the first part of my negotiation strategy - because I wanted a practical resolution, not the emotional satisfaction of screaming at someone. Next, I said that if we could work out payment issues, I'd be happy to do a few extra interviews and the rewrite "to reflect what is now a different angle and article." I was clearly indicating that additional pay over the original fee might otherwise be in question. Could I have held out for more? Sure, but I was considering the most important goal in this case - while realizing that it would largely be a case of reslanting much of what I already had in a somewhat different way.

Later that day I received a counter-proposal - a one-third "kill" fee immediately, and the remainder on rewriting the article. Because I had overbooked revenue above my target goal, I could agree to that, maintain a relationship that I expect to be a profitable one (I already had a second assignment and had negotiated a 20% rate increase between the two), and still have the cash flow for the full goal, with the extra to follow in the future. So I agreed.

Did I get everything I wanted? Of course not! But did I get what I needed then? Absolutely. And if that hadn't done it, I would have looked at other possible negotiation strategies. Negotiating out of a problem won't always work - it didn't do a thing when early this year I had a client declare bankruptcy. But it's a potential tool that might get you out of a jam, so don't assume that you only use negotiation before you start an assignment. Any time an issue comes up - payment, or maybe a sudden change in an assignment or deadline - negotiation is useful. And it's a great deal more effective than tying yourself up in knots or posting on a writers' board how angry you are with someone.

One Time to Ask for More than Enough

I'm a firm believer in understanding your own bottom line pricing based on your business needs and on value pricing - charging for the value you can deliver, and not the time you spend. But even then there can still be a gap between what you'd charge and what the client might be willing to pay on the upper end. I was reminded of this a couple of times this last week. Once was for a speaking engagement, when I quoted a significant sum, as I'd be out of the office for at least two days in traveling and through that it would be a discouragement. It wasn't and now I find myself getting a good chunk of cash for something where I could too easily have quoted something far lower and found myself resentful that I had gotten tied up for relatively little.

The other occasion was similar in a way. A corporate client asked if I'd be available for a project reworking a web site, but said that it would want to see a sample of how I'd do a page. I knew a bit more about the situation from other sources and understood that the company wanted more "editing" than writing, and so a lower hourly price. I thanked them for the opportunity and added that I wouldn't work for spec, but would be willing to discuss a price for a single page - probably on a flat rate for the whole thing. In ending the explanation, I asked a question about blending information with marketing that I figured would communicate my knowledge of how to bring the two together. Unexpectedly, I received a reply asking for the rate. I came up with something reasonably high, given the actual amount of work as well as the need for some expertise. Again, I was surprised - I was asked to do a fast turnaround on the sample for the pay I requested.

In the second case, again, had I not shot high enough, I would have been irritated because I wasn't getting value for the value I thought I could bring. Furthermore, going lower would have meant indicating that the entire project would be inexpensive. Not the type of corporate writing I'm really interested in doing.

There are many factors in pricing, and one has to be whether you are excited about a a project, both because of the material as well as the conditions. If not, it's generally the time to think outside your personal pricing box. Don't assume that your finanical view of the world is shared by your clients. There's always the very good chance that the client is willing to spend more than you'd ordinarlly think of asking, and there are times that you need to make that kind of money so that the project is worth your time.

Get That Publishing Lawyer

Over the years I've heard a number of experienced writers and authors saying that they trust their agents to tell them if there are problems with a book contract. In my experience dealing with contracts and agents, this is a big mistake. Here are the common rationales I've heard:

• Agents deal with contracts all the time. Writers deal with contracts all the time, and how many of them are capable of providng a thorough review of a contract? Of the many hundreds of writers I've met over the years, there has been just a few that I think would be able to find most (though possibly not all) the potential probelms in a contract, and most of them have either been lawyers, paralegals, or corporate contract negotiators. The logic doesn't hold up. Yes, agents are likely more sensitive to contract language than authors, and they will spot many problem areas. But not all. I've seen too many writers who had used agents and ended up with problems in contracts to assume otherwise. Unless your agent is a trained publishing lawyer, he or she will be unlikely to catch every potential problem in a contract.


• I trust my agent. It's good that you trust your agent. But why put your agent into the box of having to know what a lawyer knows? If something does go wrong, you will no longer be able to simply say that the agent didn't catch a particular issue. Now the person will have let you down and your working relationship will go into the dumpster. A good many agent contracts also specifically state that they're not lawyers and that if you need one you should hire one. They don't include the language just for fun.


• A good agent will know the business and the potential problems of a contract. I agree that a good agent will know the business, but contracts change constantly and a slight difference in wording can make a big difference in interpretation. Also, agents will know the area - publishing - in which they usually work. But what if there's a problem with some other set of rights? An attorney familiar with licensing deals brings a broader perspective.


• Contracts is why I had an agent to begin with. I beg to differ. An agent is a salesperson. You have the agent to sell the book to an editor for more money than you'd be able to get on your own, assuming that the editor was willing to talk to you. To expect the agent to be a lawyer as well is to demand extra work that the person is not qualified to give.


• Why should I have to spend the extra money? If you ever have a problem and find yourself having problems with the publisher that could have been avoided, you'll know why you spend the money. Most of the time there won't be a problem. For the times that there are and the stakes are high, the cost of the lawyer (who, charging by the hour, will cost far less than the agent) becomes inconsequential. The cost of fixing a problem after the contract is signed can be orders of magnitude (as in 10, 100, or 1000 times more) than the review would have been. If the book is important and the contract amount significant, then you should make that much of an investment in your business.

I think the underlying factor is a combination of not wanting to part with any money and, more importantly, fear of the legal process. All that's really involved, though, is doing some research to get a lawyer experienced in the field, submit the document, and get the review. This should cost far under $1,000 - possibly under $500. If you're looking at even a low five figure advance, you're talking about a relatively small percentage, and a lot of peace of mind.

Dangers of Boilerplate Contracts

Writers often look for boilerplate contracts. Some want a document for a client; others think that having a "standard" document will help them better understand what they receive from clients, particularly publishers. I understand the motivations, but almost inevitably the results are risky because the writers don't understand the limits of what they seek.

One is that the agenda of the entity presenting the contract will affect how it is written. Any writer who has received a contract from a publisher knows this, but the same is true for documents you find on the web. For example, I remember once reading through an example magazine contract offered by a writers organization. It called for payment not on acceptance, but simple receipt of an article. Receipt? That's like asking someone to pay for a car before they get to turn the key to see if it works. Payment on receipt is completely unrealistic and even unreasonable for the publisher, yet one writer after another now thought that this was a realistic approach. Chances are that there were some contract purists who refused work because they couldn't get such ideal terms.

Another problem is that boilerplate contracts are generally so generic as to be almost unusable. They almost never cover all the areas you need to address, and you also have to wonder whether a really good lawyer is going to create such documents for free use. When I needed a collaboration contract, I did start with a boilerplate - and then proceeded to double the length with all the areas I knew I needed to cover. Only then did I go to a publisher lawyer and get help with a final draft - and the lawyer added yet additional considerations.

I've often seen writers, even very experienced ones, trying to cut corners and get away with something they found and a free review from a writer's organization. Yet the very same people would shake their heads at someone trying to sneak by with non-professional writing. The same reasons apply. If you need a custom contract, you need to invest in setting up a proper contract, which will force you to consider problems before they occur. If you can't afford to get professional help, then either you're not doing enough of the given type of work (so the cost of the contract is reasonably spread over a number of assignments), or you're working for too little. Cutting corners might work for a while - even a long time - but eventually you get burned, and it's a cost that all the money you saved will never equal.

When Contracts Aren't Enough

Reading a contract is an important task in the life of a businessperson. You agree to terms and conditions that govern how you will do business and that could come back to bite you in the posterior. But when dealing with someone new, there's an even more fundamental - checking someone's reputation.

Alex Beam in the Boston Globe wrote a column about a ghost writing firm - New York-based Penn Group - that has sued a couple of its writers, allegedly because the young owners got made at the authors. The column may be accurate, or not, and I have no idea who ultimately holds the blame for the dust-up. But I do know one thing - that type of story is enough on its own for me to shy away from doing business with a company.

No matter how beneficial a contract's terms seem to be, you should have the basic sense that you can more-or-less trust the people on the other side of the table. If you can't, it won't matter what the contract says, because someone somewhere will be ringing a lawyer.

Before considering a contract, do some some background research and check a client's reputation. If there are some red flags, then you have a chance to steer clear. It might be that a company like Penn Group actually would be good to work with. Perhaps the writers really are at fault. After all, one of the writers at least had done more than one project with the company. But we're not talking about proving something for court. Instead, you want to limit unnecessary risk when it is tied with catastrophic results. Otherwise you might find that you were playing the business version of Russian roulette.

Simon & Schuster Takes Aim at AG

Last Friday I mentioned the Authors Guild warning about the new Simon & Schuster contract changing so that a book could effectively be "in print" forever, and how that has been creeping into publishing for years.

Early this week, S & S decided to fire back with an open letter "To Our Colleagues in the Author and Agent Community." The company made its central point in the first two graphs:

The Authors Guild has recently perpetrated serious misinformation regarding Simon & Schuster, our author contracts and our commitment to making our authors’ books available for sale. Unfortunately, these distortions were released by the Authors Guild without their having undertaken any effort to have a dialogue with Simon and Schuster on this topic.

In recent years, Simon & Schuster has accepted, at the request of some agencies, contract language that specifies a minimum level of activity for print on demand titles. Our experience with the current high quality and accessibility of print on demand titles indicates to us that such minimums are no longer necessary. Our position on reversions for active titles remains unchanged. As always, we are willing to have an open and forthright dialogue on this or any other topic.

Let's start taking this apart. The first graph is rhetoric - distortions without having trying to have dialog? That's a corporate way of saying that unfavorable news leaked out. Surely the company knows how professional writers would react. Did it seek to have "dialog" with the Authors Guild? Apparently not; it put the clause into contracts and, according to the AG, agents are reporting that S & S will not remove the passage. I guess talk is talk and printed contracts are something else.

Now for the second paragraph. Historically, the minimums were never to ensure a given quality of printing; they were to ensure a sufficient level of commitment on the part of the publisher. If you have to keep inventory, then you have an inducement to get it the hell out of your warehouse. And, again with the dialog - who cares if they won't negotiate the point.

Then the letter goes on to ask authors and agents to consider a number of points:

• Through print on demand technology, publishers now have the ability, for the first time in history, to actually fulfill the promise which is at the core of their contracts with authors – to keep the author’s book available for sale over the term of the license.

Oh, please. A publisher is interested in profit. The core of the contract was to ensure that the publisher made reasonable efforts in exploiting the rights it was granted so that both it and the author could make money. Keeping something available for purchase means nothing if you aren't promoting the item, unless it has so much self-renewing demand - like The Catcher in the Rye - that the publisher almost couldn't screw things up even if it wanted to. Also, virtually every book contract I've reviews as ASJA Contracts Committee chair was for the length of copyright. That means past when the author dies. Having an ebook or POD text in a database isn't promoting the book.


• We view this progress as a great opportunity to maximize the sales potential for slow moving titles, and some of the best news for authors and publishers in a long time. The potential benefit for all concerned in incremental income for the publishing partnership far outweighs any imaginary negatives purported by the Authors Guild.

This may be good news for publishers - get a bit more from that old dog in the virtual warehouse. But for authors? Not a chance. If there are dribs and drabs coming in through someone finding a book online, why not use POD yourself and get all the money coming in and not some small slice of royalty. Also note that many royalty clauses actually reduce the percentage for POD and ebook versions.


• We and others are investing heavily in digitization so that authors and publishers can reap the maximum benefit of publication over the long term. New technologies including print on demand will extend the life of a book far beyond what has been possible in the past.

Yes, they will extend the life, but again it's the publisher that will really benefit. Most books never earn out their advances, so as these sales continue of their own accord and with absolutely no help from the publisher, the writer will likely never see another penny.


• Contrary to the Authors Guild assertion, using technologies like print on demand is not about “squirreling away” rights, nor does it mean that “no copies are available to be ordered by traditional bookstores.” Print on demand is simply a means of manufacturing a book, making it widely available to retailers and consumers.

POD and ebooks are technologies, but they have an impact. They are considered "versions" of a book, and if your contract says that a title is in print so long as any version exists, that means the rights are perpetually theirs. The intent doesn't have to be focused on keeping the rights to make the effect that.


• Publishers must and will continue to invest in sales and marketing organizations that work on behalf of its books regardless of how they are manufactured.

A publisher works on PR and marketing - in a minimum way for the vast majority of titles and for only three months. After that, it's the author doing all the work. This claim of S&S is actually laughable if you have any experience in the industry. And then there are all the ways in which they claim to promote. Stores don't stock backlist books unless they move heavily, and the publishers are the whipping posts of the retailers. The sales team reviewing "inventory opportunities?" That means pushing new titles, not keeping old ones in place. Category promotions? How many of the backlist books actually appear?

Yes, POD and virtually warehousing provide important tools for publishers - and I think they should use them. But lets stick with some level of sales activity that they create. If they can't do that, then they're not doing their jobs, and they shouldn't keep the benefit of the rights that they licensed.

UPDATE: According to the Authors Guild, Simon & Schuster is now saying that it will negotiate the rights reversion clause "on a book-by-book basis."

Better Way to Web Pay Writers Say

The Writers Guild of America, both the East and West divisions, are the major professional organizations for those who write movie and television scripts. And the entire organization is pushing for writers to get a cut of what the studios will be making online, according to an LA Times story.

The studios are calling the stance an attack on the entire business and further demanding that the industry revisit how it allots residuals - the money paid for reruns and reuse of same movies and TV shows. They only want to start paying after a show breaks even.

Let's take this argument apart a bit. Here's something from the story:

Chief studio negotiator J. Nicholas Counter, president of the Alliance of Motion Picture and Television Producers, called the demands an "assault on the entire industry."

"We are committed to making a deal — one that is fair to both sides … one that is realistic, reasonable and respects our contributions and our business needs as well as theirs," he said.

So, is the negotiator tacitly admitting that a percentage is fair and only disagreeing with the amount? Or is he pulling what newspaper and magazine publishers still claim to writers: that there's no revenue to be had from the Internet? If that's the case, then obviously there should be no problem in offering a percentage of the nothing they get. If there is revenue, it's unreasonable for the the studios to divert everything into their own pockets.

As far as residuals, when does "break even" happen? Anyone who has watched chronicles of the business dealings in Hollywood knows that the answer is often never, after the accountants are through with such things as deducing the money that the studio would have made had it invested in something else instead. After all, not not only are there expenses from money the studios spent, but from what they didn't spend. And are these people suggesting that they get free air time, free engineering, free ... everything, until they decide that they've broken even? Tell you what, as we're only writers, let's make it simple to understand and leave the high finance out. If the studio heads want writers to forgo their share of these new revenue streams, that's fine - so long as the studio heads have their entire compensation cut equivalently. I'm sure that will work; I hear that climate change is going to bring a freak snowstorm to the ninth circle of hell.

Stalking the Wild Deal-Killer

For those who might not yet have run across the term, a deal-killer in the contract world is a condition that puts you at such potential disadvantage that you have walk away from the work.

Not all people have the same deal-killers. If a significant part of your business is reselling articles, you are more sensitive to extensive rights licensing than someone who doesn't bother reseller, or who is doing corporate work. One person might find pay on publication (where you don't get paid until the article runs) unacceptable while another will hold his or her nose because for other reasons a clip in a specific magazine could help increase a public profile.

But there are some terms that should be deal-breakers for all writers, because the danger so strongly outweighs the return. I ran into one this weekend on a book contract that sought not only indemnification if I breached a set of warranties, or promises, but if there was an allegation that, if proved true, would be a breach.

Now, the topic wasn't one that would cause a libel suit nor an action over having invaded someone's privacy. But there are a lot of kooks in the world, and the topic isn't new. Even though I know I wouldn't infringe someone's copyright, could I be that sure that no one would ever accuse me of doing so? Such unfounded claims are hardly unknown in the publishing world.

If I signed a contract with that particular phrase, I'd be liable for the economic damages, including legal fees, that the publisher would face - whether I had done something or not. And contrary to the opinions of many, and something I used to think myself, some major publishers actually do pursue reimbursement from writers over such things. As it stands now, I've let my agent know and we're waiting to hear back from the publishing house. Should they refuse to back down, I'll be walking away from the contract, even though it would be a handy amount of work to lock down.

Any time you look at a contract, you may be in a position where you feel that you need the income or the credit or the opportunity and that saying no is impossible. But realize that you might be in a position where saying yes should be unthinkable, once you realize what the cost could be. Read carefully; sometimes "No" is the best answer.

Dealing With Take-It-Or-Leave-It Editors

The process of negotiation generally assumes give and take - that one party will give some on one point and the other will yield on another. But there are times that a person or entity is unwilling to bend at all. A writer recently wrote me (via questions I said I'd answer for The Renegade Writer blog) about such a situation, where the editor basically said, "I sympathize with your position, but if you don't give in, I'll find someone else because all our contributors sign this." The writer had felt beaten up in the process and wondered whether all the well-known writers in the title also capitulated.

The first step to better negotiation and business is knowing that there is no beating - only an irreconcilable difference of opinion. What you need for your business is the most important issue; something that works for one writer might not for the next. Or there may be a time that you are either receiving so much money or that you are in such desperate need for some paying work that you are willing to hold your nose and sign away the rights. That, too, can be a valid choice, presuming that you aren't giving in because you're afraid to ask for more.

Don't judge your needs by what others do. Many nationally-known writers sign bad contracts because they either don’t care, are foolish about business, or are scared to negotiate. There are also many whom editors perceive as bringing enough audience and value that they're willing to make changes.

That said, there are also plenty of editors who claim, “Why, no one has ever brought up that issue before!” Equine-generated fertilizer. Of course they have. The editor is probably hoping that you won’t know that.

Most reputable publishers will negotiate to some degree, because they realize that they need to. More established writers may have more advantage in negotiations because there is more of a drive to use their work. Also consider that if a publisher is so inflexible before you write word one, how reasonable will the edit process be?

The main attitude to shift is the idea that someone beat you up. Nope. You simply said no because the conditions were not acceptable to you. That’s called being responsible for your business. And you can only get to an irreconcilable point by speaking up and asking for what you want in the first place. Consider it a cheap price for greatly strengthening your business.

One More Wrinkle on Amending Contracts

A writer pointed out on a forum that in my amending contracts post I hadn't discussed the "don't ask, don't tell" school of editors that accept changes without comment if you make them but refuse any changes if you ask.

Unfortunately, although simply amending the contract may seem like a solution in such circumstances, it isn't because the editors obviously don't look at what you do send. If they did, you'd be back in trouble because they'd resent that you actually changed something without asking.

Also, ever get a signed agreement with the changes back from these editors? If not, the door open, in case of a legal conflict, for the magazine to argue that the original terms were the ones that governed the relationship and that you wouldn't have proceeded without getting a countersigned changed document. To win you'd have to go to court, but the results would be uncertain, and that means you'd have already lost considering the costs of taking legal action.

Problems of Amending Contracts

Many freelance journalists who don't like parts of their contracts will mark up the documents they receive, initial the changes, sign, and send the paper back in without talking to their editors ahead of time. They might think this is effective, but it generally is the single weakest way to address contractual issues and can cause problems down the line. Not only are you less likely to get what you want, but you might unnecessarily ruin the business relationship at the same time.

Consider the entire exchange from the view of the editor. You mailed a contract to a writer, received a signed copy, and put it in a stack to file. Your days are busy and you spend a week or two on deadlines. Eventually, after editing the article that the writer had sent and getting it ready for the next issue, you are doing some filing and come across the contract. Just before you forward it to the contracts people, you notice a pen mark. And another. And others. You've spent significant amounts of time on your end of the assignment only to realize that the writer isn't willing to work under the terms you had thought were set. Now everything might be up in the air, all without enough time to recover and find another writer or another article.

Take it a step further. The signed version shows up directly at the legal department, which then calls you and asks why you authorized all these changes to the contract without talking to someone there. The writer has just gone from an inconvenience to someone who is damaging your professional reputation.

Back to being the writer. The editor should have noticed the changes at the start, but realistically it could easily happen that no one would see your demands until late in the game.

Why do many take this approach? Because they are afraid of confrontation and hope that by sending an amended version, their demands will sneak by and they won't have to talk to someone. Although this might work on some occasions, it's ultimately self-defeating. Each time you act from fear, you reinforce that feeling and response. The next time you get a contract, you're that much more likely to change, sign, and send and hope that it doesn't come back to haunt you.

Some argue that by mark up the contract and sending it in, you're legally declining the terms and counter-proposing another set, so that if the publisher uses the piece, those would be the terms covering the relationship. That might be technically right, but it's still a way of thoroughly screwing yourself. You are always, always, always better off contacting the editor regarding any terms and conditions that you find unacceptable. The editor might not be able to make the changes or might. Or the editor might be unable to bend on one issue and instead offer something else - possibly more pay or something else important - to make up for it. Even if there is no other reason at all, talking or emailing the editor with your concerns and what you're seeking helps you build a relationship, and it's the relationship that can become a steady income stream, not the piece of paper that the company overlooked and is now forced to accept.

Update: one more consideration here.

What Assignment Not to Take

I saw complaint about a publisher in WritersWeekly.com. Between the end of 2005 and spring 2006, the writer in question claims to have written three articles for a publisher without getting paid for a single one.

Writers often focus on finding, taking, and completing assignments. Not much of a wonder, as that's the way they make their livings and get their work out into the world. but there are times to focus on not taking an assignment:

• You are wroking with a publisher that is new to you and that wants to give you several assignments. You're excited - but don't be. Professional publishers rarely assign multiple pieces to new writers because they don't know how the first one will turn out. Writers should work in a similar way. Do you want to be ethically and legally obliged to an editor who turns out to be a nightmare?


• You've completed one assignment for a new publisher and haven't yet been paid. This is similar to the first situation. Wait on another assignment until the first check clears. You can plead a full schedule (which helps battle Writers Puppy Syndrome) and be sure that the check comes in ... and that it clears.


• If you've been doing business with a publisher that suddenly slows in making payments, has a rapid exodus of editors, or otherwise shows signs of instability, financial or other, consider taking a break. Wait a month or two and see whether things straighten out. At worst you've shown that your work can't be taken for granted, and at best you avoid dealing with a corporate meltdown.


• Skip an assignment that rquires you to significantly compromise your business model. There are always other clients and even other ways of making money, so unless your back really is to the wall, don't arrange your business to suit the client.


• Always - always - heed assignment red flags. They may be false indicators of problems, but living through one actual disaster more than makes up for a half dozen times of avoiding false alarms.


• Pass on assignments that don't fit your brand and specializations. Unless it's a topic that is fascinating to you personally or represents a new direction you want to take in your business, don't get distracted.


• Don't take work that you can't do well. Stretching yourself is great, but there are ways to do it and ways not to. If you don't have the background or detailed knowledge necessary for a certain task (for example, knowing enough about disclosure regulations to write an annual report for a publicly-held company), don't pretend.

Avoiding these situations doesn't mean that you'll avoid all problems with clients, but it's going to reduce unnecessary grief - and think of the assignments you could take in the time you've just saved.