Do Copywriters Ever Read The Fine Print?
I’m not an attorney, and I don’t play one on the Internet, so what you’re about to receive is a working copywriter’s perspective on NDA/work-for-hire/non-compete agreements.
These agreements are common in the freelance world, and the copywriter who signs one without reading it first — and understanding what it says — clearly enjoys talking to lawyers a lot more then he enjoys writing.
I’m not diving into retainers or contracts here — simply exploring the agreements which can lurk within a contract, but often stand on their own. Though it makes my attorney twitch, I divide these agreements into three groups:
- Non-Disclosure Agreements (NDA)
- Work for Hire Agreements
- Non-compete (or exclusivity) Agreements
Agreements dealing with the first two points are usually benign (though not always); it’s the last that requires careful watching. And while you can encounter each of these separately, it’s also common to find all three mashed together in one document.
The only way to know is to read it.
Non-Disclosure Agreements
In simple terms, non-disclosure agreements tell you what you can and can’t reveal about a client and your work. Typically, they’re designed to prevent you from revealing client information including marketing plans, technical information or plans.
Some prevent you from even disclosing your relationship with the client (one client didn’t want their ad agency to know they were hiring a freelance copywriter).
When I worked primarily in the Silicon Valley, I signed so many NDAs I finally adopted the most-readable one, and handed it to clients before they even asked for it.
That eliminated surprises, and almost made me look professional (I think the propeller beanie cost me).
NDAs are common, and in some cases, writers are asked to sign them prior to taking the first meeting.
Despite their often benign nature, they can have bite. One company’s NDA would have given them the right to inspect my computers for confidential documents up to 24 months after the project ended.
Right.
I told them my computer contained my own trade secrets and personal information, so I’d happily firewall their work on a separate laptop.
Provided they were willing to supply it.
Oddly, that portion of the NDA soon disappeared. Which leads us smack into Today’s Lesson: If someone wants to impose a burdensome requirement on you, then make them bear at least part of that burden.
You’re being paid for the work, not for managing a complex process imposed by a hyperthyroidal HR department.
If it takes extra time, they have pay extra money.
An NDA can also become problematic if it restricts your ability to promote yourself using a completed client project. (Yet another reason to use your own NDA; you can give yourself permission to use any published work product for your own promotional purposes.)
Finally, just because client says the NDA you were just handed is a “standard” NDA, that doesn’t mean all sorts of nasty stuff isn’t lurking within.
Often, the person sending you the NDA is doing so because the HR department told them to; they’ve probably never bothered to read it.
Work Agreements
Essentially, a work agreement spells out who owns what, and how the work is to be performed. In the copywriting world, these are rarely a problem — most copywriters transfer all rights to the client. In fact, when you see the phrase “work for hire” in an agreement it means you’re giving away all rights.
Because life is rarely simple, the work product issue has grown sticky in some states; clients are under a lot of pressure to prove freelancers (independent contractors) aren’t regular employees.
(Companies have long tried to classify real employees as independent contractors to cut costs; some states cracked down on the practice, leaving freelancers to perform some odd legal gymnastics.)
One well-known software company demanded — as part of their 30-page contractor “application” — that I provide contact data on all my clients, including descriptions of all the projects I’d written the prior two years.
Their HR department wanted to prove I worked for lots of companies, thereby meeting the standard for independent contractor. I emailed the form back with a nice note explaining my client list is a trade secret (especially since I was under restrictive NDAs with 1/3 of my clients), and they could go pound sand (again, nicely).
Although it’s rare for writers, some work agreements also spell out how and where work is to be performed or delivered.
If you find an issue, you’ll have to decide how far you’re willing to push it.
The Dangerous Stuff: The Non-Compete
For the freelancer, non-compete agreements represent potentially dangerous territory (in some states — like California — post-contract non-competes are largely unenforceable).
Essentially, non-competes limit your right to work with organizations other than the client for a specified period of time.
When I was writing for semiconductor capital equipment firms, they wanted assurances I wasn’t also working for their competitors (technical clients are very touchy about trade secrets).
If you’re freelancing for an ad or design agency, they don’t want you poaching their clients.
Fair enough.
I don’t believe a freelancer can work for two direct competitors at the same time, and I understand why technology companies are touchy about leaks. Freelancers who poach clients probably don’t get what they deserve often enough, but they’re also probably not going to heaven.
Still, you shouldn’t let clients limit your ability to work for a living after your contract has ended.
Yet a lot of non-compete agreements do exactly that.
Years ago I received a non-compete stating I couldn’t create any kind of project for competitors in any of my prospective client’s markets (they had many divisions). The prohibition lasted 12 months after the conclusion of the single, relatively small project.
That, my friends, is a non-starter. How much potential work would I have signed away in return for one medium-sized project fee?
According to AdAge, restrictive, long-term non-competes are becoming the norm in the advertising industry — even for freelancers engaging in short-term contracts.
Let’s take a hypothetical: you’re writing blog posts for a magazine website, and they hand you an agreement that prohibits you writing for any magazine website, and for a full year after you leave.
I might agree to embargo a short list of directly competing sites while under contract with the original site.
But there’s no conflict involved writing in two distinctly different markets. And no prohibition should live beyond the end of your contract.
Look, It’s A Business
If someone wants to pay you to write a website, great.
If they don’t want you to reveal their trade secrets, also great.
If they don’t want you poaching their clients or working for a direct competitor while their project is underway, that’s OK too.
Those fall under the “duh” clause of my personal code of business ethics.
But if that client wants to restrict your ability to work for non-competitive organizations or hamper your work after the project has ended, they need to give you something for that privilege.
That something is usually money. (Remember the basic rule of negotiation; never give up anything significant with getting something in return.)
Typically, clients are willing to remove heavy-handed clauses from agreements once they’re called to their attention. In most cases, they’re not even aware they exist.
If they’re unwilling to alter the terms of the agreement, you’re faced with a choice between asking for money to offset the burden or just biting down hard and signing the contract.
As a matter of principle, I don’t recommend the latter, but maybe the job is worth it. And maybe there’s a workaround.
At the very least, you’ll enter into the agreement knowing what lies ahead, which is infinitely better than signing the agreement blind and assuming everything will be OK.
Takeaways
- Read the damned fine print
- Just because a lawyer wrote it doesn’t make it legal (I still see non-compete clauses even though they’re unenforceable in California)
- Don’t relinquish your ability to make a living without some kind of compensation
- Remember — you’re being paid to perform a specific task, not entering into indentured servitude
- You can often have onerous clauses removed, but only if you ask
Keep writing (and reading), Tom Chandler.
A bully post, Tom.
To readers considering becoming a freelancer, do not let this discourage you. These takeaways are valuable, and in time you may need them (especially reading before you sign and asking to remove onerous clauses), but legions of freelance writers work successfully for a long time without stepping on a legal land mine or having to make Sophie’s Choice.
>they’ve probably never bothered to read it.
Change “probably” to “certainly.”
> you can give yourself permission to use any published work product for your own promotional purposes
Or at least link to it from your site. Some companies get tetchy when you hang their PDF on your site. And if you’ve ghostwritten it for them, you might shoot yourself in the foot by publicizing that you wrote it.
>clients are under a lot of pressure to prove freelancers (independent contractors) aren’t regular employees.
I second this. If you enjoy a long, lucrative (say, >$40K in annual billing) freelance relationship with a company, eventually somebody will ask, “Why isn’t s/he our employee?” They are asking that mainly because they want to ask it before the IRS asks it (and the days of a kinder, gentler IRS are sadly distant in our rear-view mirror). You may find yourself needing to negotiate a maximum billable amount per year for all work done for that client.
John White(Quote) (Reply)
See, I’m not even sure that’s a good thing…
I think dealing with samples in the online age is probably worth a post of its own. Online samples are easy to link to, but they’re hardly set in stone. Probably lots of things I’m missing in this arena.
It used to be how the work was performed was more important than the amount; if you had many active clients and weren’t compelled to work onsite at set hours, you were good. I haven’t had to deal with this issue the last couple years, but friends still working in the Silicon Valley definitely have.
It seems as if it’s getting more complicated all the time.
TC(Quote) (Reply)