Freelance Contributors and Commissioning Contracts

by Catherine Stewart

Background - The Changing Scene

Contributor Contracts

Most publishers are now requiring freelance contributors to sign a contract, usually called either a commissioning, or contributor contract. These contracts invariably require freelance contributors to sign away various rights to their work, including copyright, exclusive licences and non-exclusive licences. Many also require contributors to give various warrantees about their work, such as its originality. Some also require a freelance contributor to indemnify the publisher against any legal claim brought against it that arises from any material submitted by that freelance contributor. A more recent contract requires a contributor to give retrospective rights to all previous work submitted to that publisher with an onsale date from 1 January 2006.
If you sign away your copyright, the words you have written or the photographs you have taken no longer belong to you, and you cannot use them again, either for your own purposes, such as in a book, or on your website, or to resell. If you agree to an indemnity clause, you leave yourself vulnerable to legal action. In some contracts, that includes legal liability for material on which you no longer own copyright, or have assigned a licence 'in perpetuity' (forever), and even material that has been on-sold to a third party without your knowledge or permission.

What you should do
Don't ever sign a contributor contract until you are sure you understand all its requirements, including all the fine print and definitions of terms. Your copyright is a valuable commodity, and you should never assign it or give it away unless you are absolutely sure it is in your best interests to do so. Similarly, giving a publisher legal indemnity is a risk for a contributor. Before you sign away your individual rights, you should also consider the effects such contributor contracts will have on freelancing as a viable business for you and your colleagues, both now and in the future. Signing away rights where there is no increase in payment is effectively taking a pay cut, and also contributes to this becoming a new industry standard for all freelancers.

Moral rights

Apart from copyright, an author also has moral rights over his/her work. These include the right to be attributed as the author, and the right that the author's work will not be altered or treated in such a way that is prejudicial to the author's reputation. Moral rights continue, whether you own the copyright on your work, or you have assigned/sold it to another party.

If you are not sure, you can:
1. Read information about copyright and moral rights on the Copyright Agency Ltd website at www.copyright.com.au (navigate to downloads>information sheets)
2. Contact your HMA state executive for information
3. Contact the Media Entertainment and Arts Alliance (MEAA), the union that freelancers are eligible to join, at www.alliance.org.au
4. Study the MEAA Standard Freelance Commissioning Terms contract. (Go to the MEAA home page and search for 'freelance contract' in the top right search). It sets out fair terms and conditions for both publishers and freelancers. It does not propose any set rate, but shows the percentage weighting for different types of licences and includes a useful commissioning acceptance form for freelancers.
5. Join Freeline, an online forum for freelancers, where many contractual issues are discussed. freeline.net.au

You can also negotiate with the publisher to alter any terms that are in the contract. If you want to do this, you should find out about other contributors who might be similarly affected, which will include many freelancers in fields other than horticulture. You can also contact/join the MEAA which, if you are a member, can negotiate on your behalf.