I was having a conversation recently with my online pal and master cartoonist George Coghill. We were talking (well, e-mail, but you get the point) about contracts and all that wacky fun of negotiating stuff so you can just get to work already.
I think every freelancer goes through contract angst at some point, as both George and I certainly have. Sometimes a project comes your way sounding like just the thing you need and Bam! There’s something weird about the terms.
Maybe it’s not weird enough to make you say no immediately, but it’s just enough to clog up your usual routine of estimating cost because you have to, well, dare I say it?
Think.
Damn. And on a Monday, too.
Contracts suck. How does anyone get anything done like this? Can’t we just shake hands and say I’ll give you some art and you’ll give me some money and it will be like a day at Disneyland? Can’t we?
I’m going to tell you a deep dark secret, but do not repeat this anywhere. Promise? Okay. Here goes:
There are some unethical people in the world.
You did NOT hear that from me. I’ll deny it.
So that, kids, is why we have contracts. They still suck, but we know there are reasons for their existence (unlike reality TV or olive pits).
So you’re all psyched that you got a bite on your lil’ fishin’ pole, but then you find issues in the contract that just don’t sound cool when you read them a second time. They can be things like:
- Handing over all rights and source files for everything you create on the project.
- Non-compete clauses that prevent you from working with an agency’s clients without their involvement… ever.
- Work-for-Hire contracts that (again) ask you to hand over your original art when you’re done.
- Setting an hourly rate and logging your time every day.
Funny thing is, these aren’t problems for everyone. That’s where the trouble lies, isn’t it? One web site says Work-for-Hire is the devil’s playground, but your artist friend does it all the time. Orphan Works bill confusion suddenly injected fear into your happy little world. With so many artists disagreeing about rights, rates, and working conditions, how are you supposed to decipher this damn contract and just get some money coming in?
Especially when you’re just starting out, the Contract Monster gets fat and happy on all this conflict, confusion, and fear.
So how can you know which contracts or project terms are okey dokey and which ones are written in brimstone? Well, here are two ways:
Hire a lawyer
Sure, do it. A good lawyer will help you decipher those 20-pagers and translate the legalese into stuff you understand. That’s what they’re for. You have to pay them, of course. Then, if you don’t like what it says, what do you do? You could pay the lawyer to reconstruct it and negotiate for you, but can you afford to do that every time you see something you’re not sure about? If you’re like me… nope.
Use your noggin… or share one with a friend
I’ll bet my WACOM tablet that you can use your thinkin’ abilities to figure this mess out. I know you can, because I do it all the time and I do really stupid things like update my WordPress blog without backing it up first. If I can untangle this, so can you.
Deciding whether or not you should sign on the dotted line and pursue a project is a matter of asking some questions that, frankly, only you can answer. Here are some of the things I rattle around in my head (there’s plenty of room) when I’m faced with the strange sensation of the Contract Monster lurking in the shadows:
What do I need here, right now?
Am I making the rate I set for myself?
Do I love this project, does it sound like fun?
Who are these people, are they going to be good to work with or a pain in the ass?
Am I confident enough in my work and my market research that I can just bid this and let it go if necessary?
Am I going to use these images for something in the future?
Will I enjoy punching a clock every day?
This is where I start. You’ll notice that a lawyer cannot possibly answer these questions for you. However, a friend can at least play devil’s advocate and help you get to your answers, because they know you. And they’re cheap.
There are things that come up in contracts even now that make me pause a while and think really hard about what I should do, but if I go through those questions and stay true to myself, I always get it figured out.
I have a very unconventional approach to this. A lot of seasoned freelancers, especially artists, may think that I border on naive or phenomenally stupid. That’s okay. You have to do what works for you, or suddenly it’s somebody else’s career. In my career, I’ve definitely made some stupid decisions, but after learning from them, this is what I do. It works. I make money, I feel good about the rights to my work, and I know that if I have to say “no” it’s because I made a decision based on my own values.
Seth Godin has a great piece about what’s off the table. You should read it.
When you get down to it, it’s really about protection and security. We’re worried about that Contract Monster, because he has the potential to steal our work. We might give the monster the power to take away our future clients. The monster could be tracking our every move when we just want to work the project the way we think is best.
You can’t ignore these issues, especially when it comes to the rights to your art. It’s important. Don’t just give away your hard work because you need some cash. However, you also can’t put one cozy copyright safety blanket over all projects, because they’re not all the same.
Another fear is that if you don’t jump on this deal, another artist will take your spot and make money. Oh, it’s there. I have it. The cool thing is that if I ask myself those questions, I’ll soon know whether or not I care about “losing my spot.”
I am, by nature, a risk-taker. I’m that kid in high school that ate the food out of the trash just to see if I would get some terminal disease. Yep, that was me. Nope, I never did.
Now that I’m all grown up and not afraid of trash food, I take other risks just to see what will happen. I’ve taken on work-for-hire projects that paid industry scale just to see how it felt to do it. It was actually pretty fun and I got more of the same work, so sue me, I will keep doing that if the project looks good.
I’ve also worked with an agency on a non-compete clause to see how that felt. As it turned out, a client wanted to work with me outside of the agency. No deal. So, we both have to wait a year for the non-compete to run out. Lesson learned, but now I have a client who is waiting to work with me. Bonus.
When you realize that you’re not gonna die from eating food out of the trash, you start looking at life choices as little experiments. What happens if we move to Africa? What if I take that project without a deposit? Where are the boundaries?
There is a lot of risk involved in business. How secure can you be? How concerned are you with getting what you were promised? What’s your threshold for pain?
I can’t believe I’ve written this much and haven’t quoted the Mahatma.
No big or swift movement can be carried on without bold risks and life will not be worth living if it is not attended with large risks. Does not the history of the world show that there would have been no romance in life if there had been no risks?
There you have it. M.K. Gandhi, Contract Monster resister.
When you’re faced with a funky contract clause, get someone to look at it with you. Excellent idea, my friend, I’m glad you thought of it. Just realize that there’s only one person who can ultimately decide whether to sign and that’s you. If you ask yourself a bunch of hard questions and you feel funky, let it go. There will be more if you don’t let it stop you from pursuing anything again.
One lost project does not a career make.
The Contract Monster can serve a purpose, so don’t banish him completely. Just don’t let him hold you up.
The contract monster (and the what-an-idiot-was-i-to-create-one-two-hours-before-the-weekend monster) came and bit my head off. Except it was my own contract and my own mis-understanding of the project that left me headless. Putting me right in the middle of a job that I was getting paid one-fifth of what it was worth.
When we’re talking 200 hours of work for the price of 40, it suuuuuucks. I tried to get out of it, but couldn’t without a war and feeling guilty for the rest of my life. So I sucked it up, had to turn down new work for an entire month, and lost incredible momentum because of it, and am now completely gun-shy. And I’m still working on that project.
Fun, eh? So yes kiddies, make sure someone doesn’t screw you over — but also make sure you don’t screw yourself over by expecting people to be reasonable in their expectations. Their definition of reasonable and yours might be quite different! (Thanks for the article, by the way. Obviously, it hit a nerve!)
One time, I was asked to sign a contract that basically stated, “While you are working for us, we own every thought you have, whether expressed or unexpressed, for the term of this contract.”
I didn’t need a lawyer. I laughed, pushed it back, and said “no way I’m signing this draconian contract! It’s straight outta Orwell!”
It ended weirdly. A meeting with a group of corporate lawyers and HR folks, who told me, “But everyone who works with us signs this. Just do it. Please. We really want to work with you, but there’s no way we can if you don’t sign this. This is bigger than all of us…bigger than you know.”
I kind of went nuts in that board room that day. I told them I had a lot of obscene thoughts — did they really want the liability of owning those?
I said this in fun — but it hit a nerve. Another meeting was called to determine the firm’s liability on owning the rights to obscenity. During this whole fooferall, one of the corporate firm’s departments hired me — sans contract — to complete the project.
They paid me up front. I completed the work. I never heard from them again.
I was thinking as we discussed this over email “hey, he should make a blog post about this…” and voila!
You brought up some great points and your honesty about your ‘unconventional’ approach was refreshing.
A big problem I run into working with smaller clients—some who are probably working with a freelance illustrator for the first time—is that they are unfamiliar with how the industry works as far as pricing for rights, copyright transfer and the like.
A few of my illustrator pals take your same ‘unconventional’ approach—go with your gut. And also it is reassuring to know that other professionals like Sparky/David struggle with the same issues at times.
Again, thanks for the advice and glad to see you capitalized on the discussion with this post!