In a recent survey of magazines, I asked a relatively simple question: "Do you offer a formal contract?" A surprising number said "no." Even more surprising, however, was the number who then added something like, "we write a letter detailing our terms" or "we negotiate a separate agreement with each author."

In other words, yes.

It's a little frightening to realize that not every editor or publisher understands what constitutes a contract. It's even more frightening to realize that many major publications still offer no contract at all. To protect yourself in the changing world of freelance writing, it's vital that you understand the basics of contracts -- and how to negotiate them to your best advantage.

What Is a Contract?

A contract does not have to be printed on stiff paper with gilded edges to be binding. Nor does it have to be packed with legal jargon. A contract can be any form of document that spells out the terms of a sale, including (but not limited to):

• A preprinted legal document, with blanks for the name of the author, the title of the material being sold, and the fee.
  
  
• A letter of agreement. This may be an original letter tailored for a particular sale, or a standard form letter.
  
  
• A "fill in the blanks" or "check the boxes" form.

A contract must be negotiated before the ownership of the material actually changes hands. It is not acceptable, for example, for a publisher to simply send you a check and then claim that certain rights have been "transferred" by your acceptance of that payment.

Contracts may be transmitted by mail, fax or e-mail. Faxed signatures are generally considered legally binding. E-mail is trickier; it may lack the editor's signature, and you'll have to print it out to sign it. You can then choose to mail the contract back in hardcopy or scan it and save the image as a JPG or PDF file, and e-mail that back to the editor. While agreements may be negotiated entirely via e-mail without signatures, doing so depends on a degree of trust between author and publisher. [Editor's note: Digital signing is becoming increasingly acceptable in many areas, though I am not aware, as yet, of this taking place often in the case of writing contracts.]

Read any contract carefully. Watch out for loopholes that enable an editor to reject your material after it has been assigned, or clauses that claim additional rights without additional payment (e.g., a clause claiming that "FNASR" also includes "anthology" rights).

Understanding Terms

Any agreement between a writer and a publisher should contain, at a minimum, the following information:

• The title of the material being purchased.
  
  
• The rights being purchased (e.g., first rights, one-time rights, reprint rights, all rights, etc.) For a discussion of rights, see Understanding Rights and Copyright
  
  
• The medium (or media) to which those rights apply. For example, if you sell FNASR to a print publication, will you still be able to sell "first electronic rights" -- or vice versa? Does the purchase of FNASR entitle a print publication to print your material online as well?
  
  
• The distribution of the publication. FNASR is a virtually meaningless term on-line. Make sure that an electronic sale doesn't compromise your ability to sell international rights elsewhere.
  
  
• Payment, including the exact fee offered for your material and when you can expect to receive it (e.g., within 30 days of acceptance or publication).
  
  
• Your obligations and liabilities. Some contracts address issues of accuracy, originality, and libel. Make sure that such clauses don't demand more assurances than you can reasonably provide.

Making Your Own Contract

If a publication offers no contract (or confirms a sale simply by sending a check), it's wise to protect yourself by offering your own letter of agreement. Keep this as simple as possible, spelling out the terms you are willing to offer and nothing more. Such a letter might read something like this:

Dear Editor:

Thank you for accepting my article, (title). I have received your check in the amount of ($), in payment for FNASR. I look forward to seeing my article in the (date) issue.

If no publication date has been confirmed (and especially if payment is contingent on publication), you can use this letter to inquire about this issue. While such a letter may not be as binding as a co-signed document, it does provide a written record of the terms you have authorized.

What Does Not Constitute a Contract

Certain things do not constitute a legally binding agreement, including:

• A stamp on the back of a check indicating something like "Endorsement or deposit of this check transfers all rights to your material to MegaPublishers Inc."
  
  
• Writer's guidelines, whether published in a guide such as Writer's Market or distributed by the company itself. Guidelines can be changed without notice, and are superseded by a written contract.
  
  
• Your own notation on a manuscript indicating the rights you're offering.
  
  
• A verbal agreement. In theory, such agreements are binding -- but they're hard to enforce in court. It's wise to back up any oral agreement with, at the least, a memo or letter confirming the terms.
  
  
• An altered document that has not been co-signed or initialed by both parties. (In other words, if you want to change a contract, you must obtain the agreement of the publisher; it isn't enough to simply mark out or revise unwanted clauses.)

If you don't like the terms of a contract, it's always appropriate to ask whether negotiation is possible. Don't be surprised, however, if the answer is "no." Many editors are not given the authority to tamper with contracts -- which may be prepared by a separate legal department. If you can't negotiate, don't chew out the editor. Instead, decide whether the fee, the prestige of the publication, and/or the possibility of future sales outweigh the negatives.

[NOTE: The author is not a lawyer, and this article should not be considered as legal advice.]

Helpful Sites:

Model Contracts

Model contracts for author/agent, anthology, hardcover, magazine, paperback, and web publishing. This collection has not been updated in many years but the samples are still useful.