Get Paid More: Negotiate Better Contracts

Presentation by attorney Bob Pimm
Forum organized by Laurel Tielis and with notes by Karen Asbelle
May 22, 2007

Bob Pimm has a good understanding and empathy for those working in the creative arts. With more than 20 years of experience in the book industry, Bob has been involved in every step of the process and knows what a contract will mean in the real world of literary, publishing, and book-industry law.

Many creative people don't like the conflict or game-playing they may associate with negotiating a contract. In fact, they'd rather avoid it completely. But the reality, Bob explained, is that working without a contract actually puts you at greater risk for conflict. A straightforward agreement in the form of a written contract is the best professional tool for conflict-averse people because it lays out clear-cut and agreed-upon guidelines for addressing a range of concerns that can arise during the course of work. Negotiating one at the start of each job, and amending it as conditions change, can easily become a time-saving matter of course, and it is the means for delivering expected protections to both parties. The contract should reflect how you like to work with people, and it should express your honorable motivations to assist your client.

Are you working without a net? Bob pointed out to the filled room that, according to our most recent Rate Survey a fair number of our freelance members reported sometimes working without a written contract. Many who do use a contract use the other party's contract, sometimes without reading it thoroughly or requesting reasonable adjustments, perhaps in an effort not to make waves. But Bob believes contract negotiations do not have to be daunting when you have a clear vision of your objectives, take some time to prepare, and approach your negotiation partner with sincere intent to meet their editorial needs.

Planning Your Approach

To start, it's important to identify your own needs. This doesn't refer to your "need" to pay the rent, but rather your needs and preferences regarding the type of work you seek, communication style, process points, schedule and deadlines, payment terms, and so on.

It is even more important to understand the other party's needs, maybe better than they do themselves. Understand their target outcome vs. your target outcome: can they be aligned? Are there additional needs they don't recognize? For example, if they've never used an editor, they may need to know what an editor can do for them. Maybe they need to know that they've written three books in one, and that the focus needs to be narrowed.

Watch out for hidden agendas. Someone may be negotiating with others and playing them off against you. A self-inflated writer may be just tolerating an editor because his agent requires it. Ask enough questions to ensure that you really know what the job is before negotiating an agreement.

How can you do your best work if you believe the client's only concern is finding a low rate? Learn to articulate your value and what you can deliver, in a way they can't resist. If you can convince them, they will pay your rate or be concerned that they'd need to keep searching for someone as valuable as you.

Be realistic. If you're an editor working in the Bay Area with 2 years' experience, you won't command the same terms as a 25-year veteran. Do present your strong points. Seek work that builds your credibility, and continue building credibility with every job.

Power is in your preparation. Have clear and accurate information to make a good argument for your contract points. When you make it evident that you are equipped with the same information (or more) as your negotiating partner, it's not likely the other party can take advantage of you. Cultivate your understanding of the marketplace and industry benchmarks to support your information confidence.

As a professional, you'll want to draw up your own agreement. Be able to walk someone through it point by point, to explain and defend. You can add a Terms and Conditions sheet for travel or expenses. You can add Exhibits to list benchmarks, delivery dates, and so on. When you thoroughly understand the agreement you're putting on the table, you'll be able to steer clear of emotions and exude quiet confidence when you make your offer.

Prioritize your compromise items so you'll be prepared when you have to give something away. Know what the other party values in order to know which high-value items mean more to them than to you.

Benchmark the steps of the work process: when pieces are due, payment schedule, etc. Include mechanisms for when something fails so that you have a clear process to follow. It's a lot easier to talk to someone about a dropped item when they've already agreed to it. Don't overlook consideration of opportunity costs if a stall might require you to pass on other paying jobs.

Better Negotiation

Offer your written agreement before they offer theirs. It can even be in the form of a confirmation letter to the other party on your letterhead. In many cases, if you accept someone else's agreement, it's likely to be one-sided.

If you're asked to sign a company's contract, remember that you are not powerless. If they're talking to you, they haven't hired anyone yet, and you have some leverage. Any contract can be modified, if needed, even if they don't promote that impression. If you can present your problem-solving value better than other candidates, and your contract uses standard language to describe what, when, and how you will deliver, a busy legal department may readily approve it.

Look through any agreement for money leaks (e.g., a poorly-defined term that could cost you later) or power leaks (e.g., vague language regarding process, control, or decision-making).

When someone phones to ask only "what are your rates?" you might respond, "Let’s talk about what you need done before we talk about rates." Explore in detail what they need, and then let them know how you can singularly assist them.

You don't need to give away educational information over the telephone. If you feel you're being pumped for free guidance, ask to meet the potential client. You may then decide to shift into teaching mode to build their confidence about collaborating with you, as they recognize the value you can deliver.

Be assertive, not aggressive. Saying exactly what you mean gives the other party permission to do the same. Your role is not to control but to help your client realize their creative vision.

If you get push-back on any contract points, don't freak out, don't think emotionally, and don't stop listening. That push-back will be the most valuable information you'll get for solving the problem. Welcome the discussion and pay careful attention. If something was acceptable previously but not now, ask if there have been new developments or changes. If your deliverables won't meet their needs, dig in, and help them figure out how you can meet their needs.

Negotiate advance payment for a large project? It can be a great screening mechanism to signal serious work and determine whether someone is prepared to pay you. Do create a bank account for the funds, and draw from it only when you've completed the work. If the project falls through, you don’t want to have to pay back money you've already spent.

Negotiations stalled? Split the difference. Seek incentives. Or help the other party see things from another point of view.

Use an adjournment option if emotions (yours or theirs) get elevated and start to affect your thinking. Resume when you've both had time to sleep on it.

If a final offer still doesn't meet your needs, it may be a mismatch. You may need to walk away so you don't lose other opportunities.

How do you build in safeguards if a work situation changes? They can't add 100 hours of work if it isn't in the contract. You can say "I’m happy to do additional work, and here's how I can do it. Let's add it as an addendum with our agreed costs and conditions." You are set to proceed.

An observation: Bob's enthusiasm and sense of goodwill triggered some realistic optimism among us for what we can accomplish when we drop the negatives and approach contract negotiations with preparation, respectful consideration of the other perspectives, and a broader and more generous search for what is valuable to either side. Better contracts, as with many things in life, are within our power to create when we apply the right motives and step forward with our original spirit of wanting to help make something better.

Bob Pimm, literary attorney and counselor-at-law has expertise in all aspects of the book publishing industry. He has valuable, firsthand knowledge in book industry retailing, distribution, small press publishing, and literary agency. Bob has worked at Barnes & Noble, Ingram Book Company, small press publishers, and with independent booksellers throughout the United States.

Bob is a member of the Authors Guild and the National Writers Union. He is a board member of California Lawyers for the Arts, and he has written a variety of articles and book chapters on the legal and business aspects of the book publishing industry. As Editor-in-Chief , he writes a regular column for Entertainment and Sports Lawyer.