Why Contracts Are Really Your Best Friend
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.