FIRST FOR A REASON Info & Ideas About the First Amendment & Media Law


Dealing with non-employees and non-employee content

We all know that there is a fair amount of red tape that comes with having employees. You have to supervise and mentor them. They want to get paid. And sometimes they even complain. So contracting with freelancers might seem like the answer to all your problems, but freelancers bring their own baggage. Here are some tips to bear in mind when using freelancers.

1. Copyright. Conceivably, you are on the hook for intellectual property problems that freelancers lay at your feet. That means the freelancer must promise – in writing -- that they have full rights to anything they provide you for publication. You can and should require them to indemnify you for any legal liability you have if their work isn’t original. (Of course, you know the old adage: “that and 50¢ …” And 50¢ won’t even get you a cup of coffee now.)

2. Re-use. When you contract with a freelancer, be sure that your agreement gives you rights to use the work not only in the paper tomorrow, but also online, in multimedia formats and basically any format that anyone anywhere ever thinks up. You don’t want to decide to use that beautiful shot of the mountains on the cover of the publication you launch next year only to discover that you don’t have the rights to do so. Include language along these lines: “[The Company] is granted a nonexclusive, assignable, perpetual worldwide permanent license to duplicate, display, distribute or transmit the work in all media, known or hereafter known.” (If you want to be the only publisher of the work, “nonexclusive” should be changed to “exclusive.”)

3. Non-use. Reasons ranging from breaking news to dissatisfaction with the work may cause you to pass on publishing a freelancer’s work, so be sure that your contract gives you the right to publish the work, not the obligation to do so.

4. Ink the deal. Transfers of copyrights or copyright licenses don’t need fancy seals or sealing wax stamped by the king, but they do have to be in writing. Email most likely is enough, but in no event can you rely on a verbal agreement.

5. Libel. Oddly, when it comes to the libel by a freelancer, your potential responsibility turns on whether the material is posted online or printed with ink on paper. The federal Communications Decency Act provides protection for “third party” content that is posted on your site, maybe even if you contracted for that content. The same isn’t true, though, for what gets printed in the hard copy of your paper. Whether it is news, advertising or letters to the editor, you stand behind any content that you select for publication in the print edition of your paper. Again, include an indemnity provision by which the freelancer stands by the freelance work.

6. Governing Law. It may seem a small thing, but include a statement that the agreement is a North Carolina contract, governed by North Carolina law, and that any dispute will be litigated in your home county.

7. Odds and Ends. It may be obvious, but your agreement should spell out the amount to be paid and any critical deadlines. Leaving out those basic terms not only could lead to a fight with the freelancer. It could open the door to a court finding you didn’t ever really have a binding contract.

Obviously there are benefits to using freelance writers and photographers, just be sure you do it wisely. Keep copies of all agreements, and update those agreements when circumstances change.

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