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Why Contracts Are Really Your Best Friend

August 12, 2010

When freelancing you sometimes hear this little tidbit of advice floating around: “Always use contracts for work, even with friends.” Maybe you hear it and take it to heart, or maybe you listen to it and use it sometimes and when you don’t you think that there’s no way that it could possibly be necessary. After all, friends are friends for a reason, right? We do all kinds of things for friends we wouldn’t do for a total stranger or a one time client: we give them discounts, and every now and then we do free work for them, or maybe we cover their shipping, or do them a quick favor. Because they’re friends and that’s what friends do.

Right up until you aren’t friends anymore.

Case in point:

The other day my husband and I stopped into our local Borders. There on the shelf in the computer department was a brand new shiny copy of Photoshop CS5: The Missing Manual, by Lesa Snider (King). If you remember back far enough, you might remember that I did some work on Photoshop CS4: the Missing Manual, also by Lesa Snider-King (it was hyphenated at the time). In addition to the contracted work I did for the publisher (O’Reilly*) as a tech editor for the book, I also consulted with Lesa on the digital painting chapter, providing her with several graphics and artwork, as well as a full, step-by-step tutorial for her to use in the book.

At the time that I did the work, Lesa and I were (I thought) friends. She agreed to pay me for the work I did, but we never sat down and actually worked out a real contract. Our agreements for the work were done mainly through IM/email and verbally. But we were friends, and so I didn’t worry about it too much.

Until she and her husband separated. My husband and hers had been friends for a long time, and when Shawn came to us for advice and a sympathetic ear… that’s what he got. I offered the same to Lesa, but was–rather rudely–shut down. Over time, when she couldn’t convince us that Shawn was (as she seemed to believe) the Spawn of Satan, we became The Enemy.

Months went by, and I didn’t get paid for my work. Finally, because I was in need of the money and I’d given her a year, I invoiced her. She did, finally pay me.

What we failed to do, however, was specify precisely what she was paying me for.

At the time I’d provided the work, remember, Lesa and I were “friends.” She was swearing up and down she’d never write another book again. It never occurred to me that she would want the full rights to the work, and so I charged based on the first publication rights. I also vastly undercharged her–ah, the naivete of “friendship.” My mistake.

Fast forward to the other day. I’d heard that she’d reused my work, but hadn’t actually been able to confirm it for myself. When we flipped through the book, there it was, basically word for word and image for image the same work I’d given her for the previous book. She never contacted me about reusing the work, never even notified me that she would be. She didn’t pay me for it, or even offer me a copy of the book in thanks. I was credited (at least)… but that really doesn’t take the sting out of finding out that my work is being reused, especially not by someone that I no longer consider a friend.

Since the work I provided was done fairly specifically for a prior version of Photoshop, her using it in the current version is just her shooting her own foot–since it’s now out of date and only going to become more so if she continues to write Photoshop books without bothering to update that chapter. Based on advice I’ve gotten from various people (including the editor, other professionals and copyright law consultants), I might actually have a legal case against her–but it would be long, difficult (due to the lack of explicit contract), and probably end up costing me more than it was worth. Not to mention… she’s just not worth that much of my time.

I’m likely never going to see a penny for my reused work–but I can make sure that other people don’t make this same dumb mistake by sharing my own story.

What I learned from this experience:

  • When doing work for a friend (or family!), if it involves ANY sort of commercial use, set a contract. Sign it. Keep to it. It will keep your friendship healthy.
  • Make sure you *always* specify exactly how the work can be used, and what rights they are getting. Basically, treat them as you would any other client
  • Be sure of exactly what benefits you’re willing to give them for the sake of your relationship. Remember that it might come back to bite you in the ass.
  • Try to keep personal conflicts out of your professional relationship. This isn’t always possible, but you should still try.

*I have no quarrel with O’Reilly Publishing. This mess was not their fault, and I enjoyed working for them. My contract with them was very clear and concise, and I was paid well for the work that I did for them. As far as I’m concerned, they were as deceived by the author as I was.

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11 Comments leave one →
  1. August 12, 2010 10:46 pm

    Been there, done that, ironically with the (other) party named in this article.

    Want to compare whose financial losses were greater? =\

    I still do business with friends though, as most of them are honest, hard working professionals. If they turn out to be deadbeats, they were never really your friend anyway.

    • mercuralis permalink*
      August 13, 2010 1:15 am

      I still do business with friends… but I also think it’s worthwhile to keep the professional stuff professional and the personal stuff personal. I’m sorry for your financial loss (and I know it’s far greater than mine)–and I’d like to hope that one day the two of you will be able to settle it.

      It sucks when professional problems destroy a friendship, just as hard as it does when personal problems destroy someone’s professionalism. Had I been given the common courtesy of simply being contacted about reusing my work, I would have done my best to handle the situation the same way I would with any other client. But I wasn’t.

    • August 14, 2010 1:18 am

      want to hear more about this

  2. August 14, 2010 12:49 am

    As I’ve said to you already, I’m really very sorry I ever brought her into your life. :(

  3. August 14, 2010 1:43 am

    Standard disclaimer: I’m not a lawyer, blah, blah, blah. But I am a computer book author who is currently writing my 40th book. So I’ve been to this rodeo before. I’ve been hired to write material for others, and I have hired people to write material for me. In either side of the transaction, I’ve used contracts to spell out what rights I was buying or selling.

    When I wrote a book for O’Reilly, I signed a contract with them, naturally. In that contract, I promised not to plagiarize anyone’s work, and to, if necessary, provide permissions to them in writing.

    Note this: http://oreilly.com/oreilly/author/ch03.html#noplag

    From that link:

    “5. You warrant to us that the material you provide is original, except that for which you obtain permissions acceptable to us, and that it won’t impair anyone else’s rights, and that you have the power to make this agreement. You will indemnify us, our agents, and our employees, and hold us and them harmless, against any loss or cost, including reasonable attorney’s fees, arising out of a breach or claim of breach of these warranties.”

    and

    “If you use someone else’s material by permission, be sure to request and receive that permission in writing! Send us copies of all permissions letters for our files.”

    Sounds from your account that Lesa can’t and didn’t meet that standard. There is no reason that you should have to suffer for her sloppy business practices.

    I don’t know if Pogue Press has a different author’s contract; it is possible. But every book publishing contract I’ve signed has a similar clause.

    Of course, it’s up to you as to whether you want to go after ORM or Lesa for reusing your work in the CS5 edition without further payment. But if you don’t want it to be done again when CS6 rolls around, I strongly suggest that you send her and ORM a proper paper letter noting the current infringement and explicitly revoking their right to use that material in the future, while reserving your right to bring actions regarding the current infringement. Because, after all, your rights have been impaired.

    What I would do in your place (besides revoking the rights) would be to simply invoice her and/or ORM again in the same or greater amount as you did last time. It’s another use; she didn’t write a contract buying perpetual rights; here’s your invoice; pay the artist.

  4. November 10, 2010 3:00 pm

    Melissa, I’m very sorry this happened to you. Unfortunately, there are alot of people doing screwy things out there – sometimes accidentally because they don’t know better, sometimes quite intentionally.

    Your advice is sound and wise. ANYTIME you do business with ANYONE, always work out a detailed contract. I’ve known many people who didn’t work under contracts and I’ve not know a solitary one that it didn’t come back to bite them in the butt.

    I’m a business partner with one of my best friends. The first thing we did was sit down and work up a contract for our partnership. Neither of us were offended. Neither of us felt uncomfortable. We both know it’s not personal – its business. If she had felt offended or had taken issue with having a contract between us, I wouldn’t have wanted to be in business with her and she would have felt the same about me.

    I wish you hadn’t been burned like this, Melissa. Perhaps, your experience will help another avoid a similar situation.

    -Sable Grey

  5. October 7, 2011 2:07 am

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  6. Sonya permalink
    February 12, 2012 2:07 pm

    It’s hard to develop a professional reputation that will lead to any sort of reasonable remuneration down the road without professional references from the people who hired and paid you. Otherwise it sounds like sour grapes, when excuses exceed explanations. Anyone past age 30 who continues to expect pie in the sky from free work has no credible reason to anticipate respect or attention from reputable publishing houses. Sometimes people are so eager to be admired, they forget to protect their property, and fail to ensure a future that will meet their financial needs.

  7. February 22, 2012 5:55 am

    I don’t know how many ripoff stories similar to this one I have heard over the years. I am always at a loss as to why people treat artists so badly and I agree that it is important to have a contract for anything important. Having said that, Artists UK has had, and still does have, informal arrangements with quite a few artists. Given that some of these artists are very famous I guess we get by because we treat them well and other artists know from them that we can be trusted. That is a professional trust rather than trusting a “friend” so it isn’t quite the same thing. Having said all that, we still insist on written contractual arrangements with any third party publisher that we obtain by acting as agents for an artist. We are careful about who we trust and the extending of rights usage you mention is a common problem without a good contract. You might also be in interested to see what went on with Chateau Rieux on our information site http://www.artistsuk.net where quite a few artists sold full rights for peanuts.

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