Photo by Barry Schwartz
In every class and workshop I’ve taught on business practices for creative-types, contracts are the source of more anxiety than any other topic, except perhaps SEO, and SEO does not count because everyone already understands it is a mystical, ever-morphing process whose secrets are hidden in a vault in an undisclosed location in a bunker in the basement of a Google building guarded by Sauron’s younger brother. Or someone like him. Fortunately, contracts can be decoded and practiced with skill by any acolyte who can read and write without regard to Sauron’s relatives; no magical skills required.
People who are not self-employed assume the scariest thing about contracts is the legal language. Not so. It’s the money. Does the document demand too much money and scare the client? Or does the document ask for too little and scare the entrepreneur? And does the entrepreneur really deserve any money at all? (This is a question better worked out in therapy.)
Next on the anxiety scale is in fact the legal language, which does not deserve the stress it creates. Most contracts don’t contain much technical writing, at least the sort requiring an attorney to decode. There might be a few clauses referencing copyright law or arbitration, but those can be understood after a little studying-up, including what’s contained in the Terms & Conditions (the small print).
People worry that lurking among all those words and phrases are hidden meanings that will enable something bad to happen, or worse, that they will cause their own downfall by not recognizing a misshapen clause or misplaced comma. Sins of omission and sins of commission. You can’t win. As a longtime neurotic, I am proof this feeling can be overcome. The cure is to understand what the words and phrases represent.
All contracts are a late-stage expression of negotiations, meaning that anyone who does not understand the language is putting themselves at a disadvantage. In other words, if an entrepreneur is not able to explain or defend or critique a contract, that entrepreneur is in danger of transforming themselves into an employee in the near future. (No magical skills required for this transformation.) This remains true even when signing other people’s contracts, such as Work For Hire or editorial agreements.
Here’s what I tell my students: contracts are a list. I take a basic, two-page photography contract and walk them through it line-by-line.
On the front page, starting at the top:
YOU Your name and contact information.
THE DATE Different date for each version.
KIND OF DOCUMENT Estimate, contract, invoice.
THEM The client’s name and contact information.
THE ASSIGNMENT The gig.
THE DELIVERABLES What they get.
DESCRIPTION OF USAGE How the work gets used.
CHARGES FOR SERVICE AND PRODUCT Money.
TERMS OF PAYMENT Money.
SIGNATURE LINES Do I really have to explain this?
On the back side are the Terms & Conditions (the small print):
AGREEMENT Saying this is the only agreement; I know, I know.
DEFINITIONS What various terms – including usage terms – mean.
CANCELLATIONS / POSTPONEMENTS What happens in the event of.
INDEMNIFICATION Responsibility for each other’s actions.
CLIENT REPRESENTATION Client or representative is / is not present during location work.
COPYRIGHT Who owns the work.
EXTRA WORK AND USAGE Extra money!
WARRANTS AND LIABILITY We are who we say we are, we take responsibility for our actions, the facts in the agreement are true, and if we disagree about anything we’ll work it out.
That’s the short version, but the essence of a basic contract applies to all kinds of agreements.
In the popular imagination creative-types are not supposed to be any good at the fine points of business; but, hey, look at all those creative folks who are successful despite someone else’s idea about who they are. That perception says more about the failure of the popular imagination than the abilities of creative entrepreneurs to grasp what’s in their contracts – which is one of the things that makes successful ones successful.
So use your words; they are your words, after all.