It scares some people that in many parts of the writing industry, artists and writers work without contracts: essentially with no safety net: you have paid someone to perform a service (or they have paid you) with no legal contract in place. However, this is not always as bad as it seems.
However, for major expenditures like editing and sometimes graphic design, you need to have a legal agreement in place. The good news is, you might sort of have one and not even know it. The truth of the matter is, even if the person is someone you know, you should have a contract.
Friendships can be ruined, relationships ended or be damaged, or business reputations be destroyed due to lack of a contract. Here are a few simple reasons you need one:
- Expectations: It should be very clear to each party what is expected of them: what service exactly, will they be performing and what tasks are included and not included in that service? What do you, as the author, have to provide them so they can perform those services?
- Timelines: How much time should the project take? Will it be done in stages, or is there a single deadline? What are valid reasons for deadlines not being met, and what are the consequences if they are not?
- Payment: How much will this cost, or is this an ongoing cost? How are payments to be made, and when? What forms of payment are acceptable?
- Ending the Contract: If things are not going well, how can either party get out of the contract? Is there a financial penalty?
These all amount to one thing: protection for both parties. The person providing the service knows what they will get paid, and when. The person receiving the service knows what they will get in return for their money and when.
Instead of just talking about this in an ethereal way, let’s take a look at a sample contract, and go through the elements it should include.
TWO IMPORTANT NOTES:
Yes, I shouted at you for a second. The first note is that I am not an attorney. I did have one help me draw up this contract originally, and it works well in my state and for the services, I contract out and perform. However, if your needs are different you should consult an attorney. Paying for an hour of their time can potentially save you thousands later.
Second, this is a contract for services you are receiving or providing. It is NOT a publishing contract. We will cover those later in the series, but for the moment understand those are completely different, nd require a whole different level of scrutiny.
For our example, we will use an editing contract for a book. This is the contract between the editor and the author. Let’s get started:
Title: Freelance Editorial Agreement
The Title of the contract immediately tells us what the contract is for and about. Underneath the title is a simple sentence that expounds on that definition:
“This agreement is between EDITOR NAME (hereafter referred to as Editor) and AUTHOR NAME (hereafter referred to as Author) and concerns the following manuscript:”
This of course can be modified to cover design, formatting, or even proofreading by simply changing the title and the job description in the first sentence. Manuscript can be changed to cover, or whatever the person is working on.
In the case of a manuscript this is followed by three simple things:
- Author: The name of the author of the work, even if this contract is for a cover.
- Title or Working Title of the Work: This helps you when referencing the project in your communications.
- Length and description: How long is the book, what is the genre, and what are any other ways it needs to be defined. In the case of a cover contract, this is simply the type of covers needed: Print, Amazon, Barnes and Noble, etc. Be careful. Some cover designers charge more for each iteration. Know what you are a asking for before you start, and make sure it is included in their fees.
In this case, the agreement speaks of editorial tasks. It specifically speaks to different types of editing:
- Substantive and Structural Editing
- Stylistic Editing
- Copy Editing
These terms are defined on later in the contract, and this section explains that. This section may also include what the editor will not do, usually
- Scene rewrites
- Character profiles
- Additional writing
Sometimes this will include things specific to your case, or agreements you and your editor may have made ahead of time. In the case of things other than editing, this may include what the cover designer, formatter, or proofreader will and will not do.
For instance, a cover designer may be able to make banners and other items to go with your book cover, but that may or may not be part of your agreement. Make sure the terms are clear, and you know how much additional work will cost.
Budget will be an important part of your project, especially when it comes to marketing, and marketing materials like graphics should be a part of that. We will discuss covers and marketing shortly, but at this point just know it is important to include your future needs in contracts you develop at the beginning of any process.
This is an important section. How will you pass things back and forth? Will it be through Google Drive, One Drive, or some other file sharing service? Will you be working in a project management software like Asana, or will you be emailing things back and forth?
In most cases, you will be working virtually with someone who is not necessarily in your area, so hand delivery back and forth will not be possible, nor is it practical in most cases. This involves additional time, and usually causes the person providing the service to raise prices to compensate.
There are several options for online payments and invoicing. I use Square, PayPal, Bill.com, and even Square Cash. I almost never take checks as payment except from major publications who still pay that way.
You and your editor, or other service provider should agree on one you both are familiar with and comfortable using. Make sure the amount of payment and timing of those payments is well defined, and that you include who pays any fees associated with that form of payment: usually these are not much, but you need to include them in your budget.
This is where you define how the contract can be terminated by either party, and why. Usually material change of circumstances or acts of God are acceptable. There should be a period of notice—usually between 10 and 30 days, and agreements of how much should be paid by each in the event of termination. Usually there is a financial penalty of some sort for the person who terminates the contract early.
For instance, if the author terminates the contract early, they must pay the editor for the work they have completed to that point plus a fee anywhere from $50-$100 dollars or more. Many editors are freelancers, and may have turned down other work or planned their budget and time around a project.
By the same token, if the editor cancels the contract, they usually pay a penalty as well. The author will have to reset and find another editor, and this may cause them to miss deadlines. Whether those are self-created or a part of a publishing agreement, it is still important, especially if they have marketed release dates and events they may have to move.
This is important. Editing is a process of offering suggestions and advice. You as an author can take them or not take them, depending on how you want your story to be presented. The editor should bring questionable material to the author’s attention, but they cannot read every work of fiction or non-fiction out there.
So if you plagiarize something, or you don’t change something the editor suggests and it results in a bad review, the editor is not liable for that, and you can’t hold them legally or financially responsible.
This is to protect both of you, and at the same time to let you know that, while you do not have to adopt every change and editor suggests, you should certainly evaluate why they might be saying it.
This section defines how the contract can be modified, from deadlines to payments, etc. This can usually only be done by a signed addendum by both parties. This is simply to make sure you are on the same page, and there is no confusion about side agreements or changes you have made.
Finally, there should a be section that defines terms that have been used in the contract. This includes what copy editing means, or what type of cover design will be provided. And what that means, or whatever other terms may be unclear.
If you have a question about an editor’s contract, this is the time to ask for clarification, and not just verbally. It is not unusual for contracts to go back and forth several times for revisions until each party is happy.
Signatures and information: typically, this is the place where each person signs and dates the agreement. In most states, you do not need to have this notarized for it to be legally binding, and hopefully you never have the issue anyway.
However, if you should, having a contract will make the process much easier. For the most part contracts are not used that way: they are simply used to create clarity to both parties.
What if you don’t have a contract?
In some states, a verbal agreement serves as a contract, and you can use it in court if need be if you can prove the conversation happened. Even better is an email with a simple “I agree to create this item for this price” or “I agree to pay for this service at this price” is sufficient should you go to court.
Terms can duties can also be clear from emails, so in the case of some smaller tasks a contract may be excessive. However, it never hurts to have one, and they really are not that hard to draw up and negotiate.
So, your book is done, you have hired an editor and have a contract in place. What next? What should you be doing in the production process while you are waiting for edits to come back? It’s time for cover design.
We’ll talk about that in detail next.