Contracts for Creative Freelancers: How to Fix Bad Contract Terms | Katie Lane | Skillshare

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Contracts for Creative Freelancers: How to Fix Bad Contract Terms

teacher avatar Katie Lane, Attorney & Negotiation Coach

Watch this class and thousands more

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Taught by industry leaders & working professionals
Topics include illustration, design, photography, and more

Watch this class and thousands more

Get unlimited access to every class
Taught by industry leaders & working professionals
Topics include illustration, design, photography, and more

Lessons in This Class

    • 1.



    • 2.

      The Three Troublesome Terms


    • 3.

      How Work Terms Cause Problems


    • 4.

      Fixing Troublesome Work Terms


    • 5.

      Money Terms You Want To Avoid


    • 6.

      Fixing Troublesome Money Terms


    • 7.

      How Rights Work in Creative Services Agreements


    • 8.

      Making Sure the Rights are Right


    • 9.

      Final Thoughts


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About This Class

There are three areas in a contract that every creative freelancer should review, and fix, before signing. 

They're the three areas that have the biggest impact on how successful a project is, but they're also where most contracts for creative services fall short (especially if the client is insisting on using their contract).

Learn what the three most troublesome areas of a creative services contract are, where to find them in your contract, and how to spot and fix some of the most common mistakes people make.

I use contract language examples throughout the class so you know exactly what to look out for. You can download a PDF with these examples in the Class Project section. It may be easier to read than trying to read the language on the slides alone. 

Don't miss the next two lessons in the Contracts for Creative Freelancers series: Should You Do 'Work For Hire'? and Payment Terms: The Good, The Bad, The Ugly.

Cover image by Tim Arterbury on Unsplash

Meet Your Teacher

Teacher Profile Image

Katie Lane

Attorney & Negotiation Coach


Hey, I'm Katie! I teach creative professionals how to protect their rights and get paid fairly for their work.

I'm an attorney who works with people who do creative work for a living: comics creators, game designers, illustrators, marketing professionals, musicians, and authors, just to name a few. I also work as a negotiation coach, helping people who are intimidated by conflict tackle negotiations with confidence and calm. 

But long before any of that, I was an actor, and I was always frustrated by the fact that it was hard to find truly helpful legal and business advice. So much of what I found was generic business advice half-heartedly translated for artists. Instead of waiting for someone else to create legal and business g... See full profile

Level: Beginner

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1. Introduction: Hi, my name is Katie Lane and I'm an Attorney and a Negotiation Coach. I work with creative professionals to help them protect their rights and get paid fairly for the work that they do. I do this primarily by helping them with contracts. I love to read, and write, and mark up, and negotiate contracts and I get that not everybody else enjoys that. I am on a mission to help creative professionals understand their contracts and advocate for themselves effectively when they're having to negotiate agreements with their clients. That's why I've put together this Skillshare series about Contracts for Creative Freelancers. Over the course of this series, I'm going to share lawyer secrets with you, explain the oddities of contract law and get really, really nerdy about it so that you can better protect yourself the next time you have to deal with a creative services agreement. So, what is a creative services agreement? A creative services agreement is any contract where you're agreeing to provide your creative services like acting in a play or writing a novel in exchange for something of value, usually money. In this first class, I'm going to talk to you about the three areas of a creative services agreement where I usually find the most problems. These are the three areas that I check first any time I'm reviewing a contract for a client of mine. I want to show you the things that I look for and how I fix them so that you can better protect yourself the next time you're having to review an agreement. So, one important caveat before we get too far into this. I am an attorney but I am not your attorney. This course is designed to be legal education not legal advice. The reason it's not legal advice, I don't know what contract you're looking at. I don't know anything about the job that you're contemplating. I don't know what is going to be right for you. What the goal is with this particular class is to provide you legal education, to help you understand how contracts are put together, and how terms can be interpreted so that when you're reviewing your contracts, you're going to be in a better position to protect yourself and ask questions. Sound good, great. Let's get into this. 2. The Three Troublesome Terms: What are the three areas of creative services agreement that caused the most problems for people? It's how you describe the work, money and rights that are the basis of the project. Just the three things that you and your client probably care the most about. If these things are so important, why do people make so many mistakes when they're describing them? One of the biggest problems is that by the time you get to the point where you're drafting the contract language you and your client are very familiar with the project. You've likely had a number of conversations, maybe even a couple of negotiations about what it is you're doing together and how you're going to do it. Because you're so familiar with the project, the language that the contract uses assumes that both of you will be able to remember the discussions that you had. It ends up having your assumptions baked into the agreement. It has the essential elements of the work that you'll be doing, how and when you'll be paid and who owns the rights and what they can do with them, but it's missing the details. The problem is that memories often differ particularly when there's a conflict. If there's a conflict you won't be interpreting the contract, a stranger will. A lawyer or a judge who wasn't privy to any of those discussions will be reviewing the agreement and trying to determine what it means. Contracts also get out of sorts when folks try to make them sound legal. People get worried if a contract has language that feels too plain and so they'll try to add legal language in there to make it enforceable. Lawyers are just as guilty of doing this as non-lawyers are. Unfortunately, when you do that you're more likely to weaken the contract than strengthen it. There are very few contracts that require special language in order to be enforceable. The best contract is one that you understand beginning to end. So, resist the urge to throw it here and after and there and instead use contract language that both you and your client understand. But the number one reason why descriptions of work, money and rights create trouble in creative services agreements, is that your clients don't understand what you do. Your clients don't understand how to do what you do. If they did, they wouldn't need to hire you. So, they don't know how you do your work and because they don't know how you do your work, they don't know what contract terms are going to support your work and what contract terms are going to get in the way. You are the expert at what you do. You know what helps you work well and what can drag a project out. You're the expert even if you're just starting out. You know how you work and the information, tools and processes that you find most helpful when you're tackling a new project. You're the expert even if your client is sophisticated. Your clients business acumen does not mean that they understand how graphic design works. Your client is the expert at what they do and you're the expert at what you do. Even if you feel very much not like the expert you are. You know what helps you do your best work and what limits your ability to do your best work. So when it comes to making sure the contract accurately captures what you'll be doing for your client be the expert. Advise your client that agreeing to get feedback to you within five days is going to help ensure the project stays on schedule. Advise them that withholding all payment until the very end might sound like a great way to get you to do what you're promising to do, but it doesn't give you the resources that you need to get the work done. Believe it or not your expertise means you're in the best position to know how the contract should capture terms about work, money and rights. I'm going to show you how you can use your expertise to spot and fix problems in each of those areas. In the next lesson, we're going to talk about what goes wrong with work terms. That way, you can spot trouble before it impacts your next project. 3. How Work Terms Cause Problems: -What's wrong when work is described in a creative services agreement? The first problem, and probably the biggest problem is that the work isn't clearly described. This is where assumptions can cause the most problems. Let's look at an example, from a contract I recently reviewed. In the contract it said, contractor will provide the following deliverables, full color illustrations based on client's requirements. Okay. What's wrong with that? It trying to be as direct as possible. How many illustrations is the contractor required to provide? We know that there's more than one because illustration is plural, but we don't know how many? We also don't know what size? There's a huge difference in the amount of work that the creators are going to have to do, the contractor is going to have to do, depending on the size, and the detail of the illustrations. What are their requirements that the clients are going to use, to determine whether or not these illustrations fulfill the contract. Something like this really needs to be spelled out. Whether that's the type of file, whether that's how the illustrations are going to be used, what media, their needs to be information in here so that a stranger can understand exactly how many illustrations were going to be done and to what specifications. Here's another example, where the contractor is providing services, and it's describing those services as a meeting with clients stakeholders to determine client's current state, gaps, and needs. A written assessment of the current state, with options for moving forward and implementation of whatever option the client chooses. This entire thing gives me heartburn and here's why. If you're going to do a meeting with a client, that is going to be the basis of the project, you need to provide some boundaries around what that meeting is? Because if you don't, the client will take advantage of it. If the client is going to be providing the space where you're going to be meeting, it's important that you say that upfront. So, that you don't get caught in a situation where you're having to pay for it yourself. What is the current state, what are we talking about the current state of what? Are we talking about the current state of their software portfolio, are we talking about the current state of how they manage HR, what is the current state? Then what are the phrases mean, current state and gaps. Here's where you see Jargon, is really creating a problem, and not making the work very clear to a stranger. These are things where you want to describe, what it is that you're talking about, and not just depend on Jargon. The other thing is, how many options are you supposed to provide for fixing whatever it is, that you're looking at? You need to be very clear about that. Remember, you want to provide boundaries for your clients. So, that they don't take advantage of you. Then the last sentence just hurts my soul, because implementation of clients chosen option, that could mean anything. If you can't get paid, unless you can prove that you've completed the services, this sentence is not helping you out, it's too vague. The other problem that I see, is when the work isn't realistically described. I think one of the easiest places to see this problem is, when you describe the schedule for the work based on dates versus timelines. When I describe the schedule for work based on dates, I'm saying that work is due on a particular date. Well, there are lots of things that could influence, whether or not I'm able to meet that date. But, if I say that the work is due on a timeline, basically I will provide work five days, from the date that the client gives me certain material. That is much more realistic in terms of what can happen because it's clear, that I'm depending on the client for something, and I can't start, or complete my work until they have fulfilled their responsibility. The other thing that helps describe work realistically, is making sure that the client understands what they're not getting. Your clients remember, they don't understand what you do, and they're probably a little bit embarrassed about the fact that they don't understand what you do. So, you need to help them, have a clear realistic expectation for the project. One of the ways that you can do that, is making sure that you're also describing what they're not getting. The following things are excluded from the project or they're out of scope of this particular project. That makes it clear to the client, "Hey, you're not going to be getting this thing." It empowers them to ask questions. If they want that thing, they can ask for it, and they can pay you for the service. One of the things, that I encourage all of my clients to ask themselves, when we're putting together an agreement is, what makes working with a client really joyful? What do they enjoy about working with their clients? I often encourage them to think about the last five projects. What were the things that made that work appraise? What made it easy to work with your client, what made it fun? That can be anything, it can be the fact that the client was very responsive over e-mail, or didn't like conference calls, or paid you very quickly. Then the other question is, what makes client work a challenge? What are the things that make it harder for you to do your job and make it harder for you to deliver work on time? Those things need to be in the contract. So for instance, if feedback is really important to me in the description of work, I'm going to be clear that the client has to provide feedback within a certain number of days. If I'm working with a corporation or a large organization, I'm going to be clear that that feedback needs to come from one source. I might put in there that, I like having a point of contact. So, that I'm only talking to one individual. The other thing, that I find can be really useful, is describing what a revision is. So, not only how many revisions will they get of the work product but what is a revision? So, when I'm dealing with illustration contracts, I'll say, a revision is a collection of changes. If we're to the stage where things are colored, it's only going to involve changes to the pallet at this point, it's not going to involve changes to the actual composition of the image. Providing that information in the contract, really helps your client be a better client. In the next video, we're going to talk about, how to fix work when it's improperly described in your agreement, and where you can find descriptions of work in your contracts. 4. Fixing Troublesome Work Terms: How do you fix work when it's poorly described or it's not described clearly enough in a contract that you've been given? One of the best things that you can do is to make sure that the work is described so that a stranger can understand it. This helps us avoid having too many assumptions built into the contract or having details missing that would be helpful to clarify what your boundaries are between you and your client. One of the things that you can do to ensure that a stranger can understand it is, ask a friendly stranger. So, if you've got a spouse or a friend, somebody who's not at all familiar with your project, ask them to read over the description of the work and tell you what they think you are agreeing to do. This extra set of eyes can really help you spot areas where you may have thought the work is clearly described or that you had all the information in there to make sure that it was realistic, but there are pieces missing, and it's just because you're so familiar that your inserting that information when you read it without even realizing it. The other thing that you can do is to explicitly include the assumptions that you used when you were pricing the project. So, if you assumed that the project was only going to last two weeks, if you assumed that you would be able to build off of work that you'd previously done, if you're assuming, like with an illustration for instance, that you're not having to color it or that the palette that you used to color is going to be pretty minimal, you want to make sure that you're clear about those things in the description of the work because it helps ensure that it's realistic and both you and the client are on the same page. The other thing to do is to make sure that your client's responsibilities are clearly laid out in the contract. So, if they're required to provide you with material or if they're required to provide you with feedback within a relatively quick period of time, you want to make sure that that is explicit in the agreement because it's going to help make sure that the work is properly described. So let's look at those two examples and how we could fix them if we found them in a contract that we were given. So you remember we had problems with this because it didn't describe how many illustrations or what the requirements are, now, one of the things people like about that is it was nice and short and sweet, the problem though is there was lots of area to fill in. So here we're laying out that there are actually six illustrations that are required. One is full color of a single family home with a "For Sale" sign, and it's going to be based on photo reference that the client is providing. Here in parentheses, afterwards, I've defined that illustration as the home illustration. That helps us reference this illustration if we have to later on in the contract. There's also an illustration of a family. There's an illustration of a Sold sticker. Both of those were being clear that they have to be able to be layered on top of the home illustration. Then there are going to be three line drawings that are portraits of the client and client's to employees, and they're going to be based on photo reference that again is provided by the client. We're being clear about the type of files that we're going to be delivering to the client and what those files are going to be used for. We're being clear that it's being used mostly on the web, mostly digitally, and in certain situations, it's black and white, but in others, like with the portraits, we're being clear that, hey, they're going to have to be blown up. So, they need to meet those requirements. The other thing is, because our work is based on the client, we're going to say that the client has to give us the photo reference no later than a certain date, and then our work is going to be based off of when we receive that reference, not so many days after that date. So, this is an example where we're talking about using a timeline versus strict dates to describe how you will be doing work over a period of time. So, where are you going to find work terms in a contract? One of the easiest places is probably going to be the Services section which in a lot of contracts will be up towards the front. It might be in a statement of work, which is usually a separate document that's attached to the contract. So, it might be referenced in the first paragraph of the contract. All of the work that contractor agreed to provide is described in the Statement of Work referencing this agreement attached here too, that's totally fine. I actually really like Statements of Work, but it's going to be separate from the contract itself. The other thing you might do is you might find it in Exhibits and Attachments. This is really popular, I'm noticing with large corporations like Amazon, they'll put descriptions of work in a separate document that they're calling an exhibit or an attachment, and you have to go and find that description there. The other thing to remember is that work might be described in each one of these areas in a particular agreement. So you might have a Services section, and a Statement of Work, and Exhibits and Attachments that are providing further detail. If that's the case, you want to make sure that the way the work is described in each of those areas matches up with what you need. 5. Money Terms You Want To Avoid: Money. So, what goes wrong when money is described in a particular agreement? I know you're going to be shocked to find out, it's a lack of clarity. There are three basic things that I think need to be spelled out in a contract when we're talking about money and they are how much you are going to get paid, when you are going to get paid, and what happens if you aren't. Now these sound like really basic elements and I'm sure that you're thinking through the last couple of contracts that you signed them saying, "Katie, I totally had that in there", and I'm sure you did but sometimes what we think is clear is not always clear. Let's look at an example. So, here's one again that I modified from an agreement that I read recently and it's saying that one-half the total fee, $900 is due when you sign the agreement and then there are going to be two more payments of $450 that are going to happen, looks like when the client approves the final design and that this is the total fee. You are not going to be getting royalties or commissions or bonuses. So, what's wrong with this? It's got numbers in there, you can do the math, it's clear when it's going to happen and it's even saying what's not included. Here's what's wrong is the total fee $900 or $1800. The way that this is written it's not entirely clear. Now, I think because I'm doing math on the other end that it's probably $1800 but it would be really easy to fix this and make it clearer. The other thing is while it's easy to say that the $900 payment or that one-half the total fee payment is going to happen when the contract is signed. The other two payments are going to happen upon client's approval of the final design and again upon their approval of the finished product. What is that approval going to be based on? Is there a standard that they have to use or is it just they feel like it works they don't feel like it works? Remember, because your client doesn't understand what you do depending on them for approval can be sketchy. They might have totally different expectations about what final looks like. I know this is picky, this is me being my picky peculiar lawyer self but I promise you you want me to be picky not some other lawyer who is representing your client to be picky. This is the total compensation for the project. What is this? Are we talking about a total fee? Are we talking about the $450? What is this? It would be much easier if we could say the fee or the total fee and have that be a defined term in the agreement. Then the other problem that I have with this is I understand what they are trying to say that you're not going to be getting a royalty based on sales or a commission or something like that but what if you do more work because it's saying that it's the total compensation for the work described herein. Well, the work is described but what if they add on another round of revisions? What if the project goes long? Will you be compensated for that additional work? So, even though this construction can make sense from about 10 paces I don't like the questions that it leaves open. One thing that you always want to avoid in a contract when you're describing money is having a payment trigger that you can't control. Payment triggers are what the contract says must happen before you're paid. So, in our previous example, one of the payment triggers was signing the agreement. That's okay because you would have some control over when the agreement is signed but the other payment triggers were when the client approved something and you can't control those things. Good payment triggers are things like delivering the work, a specific date or a period of time has elapsed or even an event so we had the final meeting or after the event. If you're an event producer, on the day of the event. Those are all good triggers because they're not entirely in control of somebody else. A bad payment trigger is anything that the client controls so they're getting back to you with an approval. They're going live with the website. Things that the client has control of are not good triggers for payment. Always make sure that your payment is based on something that you control or that neither you or the client have total control over like a period of time. In the next video we're going to talk about how to fix money problems when you find them in your contracts. 6. Fixing Troublesome Money Terms: How do you fix problems with how money is described when you find them in your contracts? Well, here is that example that we were looking at before, and you remember all of the problems that I had with it. So, how would I rewrite this? Here is my example. So, remember one of the things that I said I had a problem with was that it wasn't clear what the total fee was, and it was really hard to reference the fee later on because it hadn't been a defined term. So, I make one short sentence at the very beginning that says, contractors fee for the services which has been a defined term earlier in the agreement is $1,800. This is the fee, and the fee will be invoiced on the following schedule: $900 upon signing the contract, $450 upon delivery of the final design, and $450 on delivery of the finished product. Remember earlier it had it on approval, here we're just changing it. It's relatively the same period of time, but it's based on your delivery not their approval. Contractor will issue an invoice for each portion of the fee according to the schedule, and client shall pay all accurate invoices within 15 days of their issuance. One of the problems that a lot of clients have with invoices is they say, "Well, what if you get it wrong? What if you charge me more than what I need to? I don't want to have to pay that in 15 days." By using this construction, you make it really clear to your client, you're not expecting them to pay incorrect invoices, you are expecting them know to pay invoices relatively quickly. Then to address the issue where we wanted to make sure that it was clear you weren't getting a royalty, but if you did extra work you got paid, we've change that to say, "The fee does not include expenses client pre-approves, revisions beyond the scope of the services or work beyond the scope of the services." So again, we're just inverting it. Instead of saying that you won't be paid additional money, we're saying there are other things that could happen that could entitle you to additional compensation. If they don't pay you, there should always be consequences in your agreement, and that wasn't addressed in the earlier ones where I wanted to make sure that we call it out. The most effective consequences are tied to what the client cares about. A lot of times I see creators getting really focused on things like late fees, or financial penalty if payment is made late. I completely understand why that's popular, it's just that it's regularly effective because the amount that the client will have to pay for a late fee is usually relatively small. So it doesn't do a good job of discouraging the late payment, it just creates a consequence, and what we want to do is we want to make sure that the consequence is tied to something that the client cares about so that the client doesn't pay you late to begin with. So if timing matters to your client, work stops if a payment is late, and the contract is really clear like if payment is late, we stop moving forward and any delay that's caused because of late payment is your responsibility client not mine. If owning the rights really matters to your client, you can say that the rights don't transfer until payment is made. The one exception to this is if you're doing work for hire, and we'll get to that when we talk about rights in a little bit, but when you do work for hire, there is no transfer of rights, so you can't use this structure. But if you're giving the client a license, or if you're transferring ownership of the rights to the client, you can say that the rights don't transfer until final payment or full payment is made. When you get paid, they get what they want. Think of it that way when you're thinking about how to explain what happens if you don't get paid. Use the contract to make it clear that they're going to get what they want when they pay you. So that those two things are very tied together, and the client then has a self-interest in ensuring that you are paid on time. Invoices. Invoices are really important and I think they're skipped over a lot, they're usually not going to be addressed specifically in the contract itself, but one of the things that I encourage you to start doing as part of your contracting process is to collect the following information: Collect contact information for the accounts payable department, or the individual who is responsible for paying accounts. You want to know their name, and if possible, their email address and phone number. That way if there's ever a problem with an invoice or there's a late payment, you know exactly who to call. Usually, you only have the contact information for your direct client. So, the person that you're working with, and they very rarely have control over when cheques are cut. So when the contract is signed, send an information request to your client just asking who is responsible in accounts payable for making your checks. You also want to ask if the company has any invoice policies. So, if there's any information that needs to appear on an invoice for it to be processed quickly, you want to know that beforehand not afterwards. Where do you find money terms in contracts? Well, the easiest place is payment or compensation. That's usually going to come up in the middle or towards the end of the first third of a contract for services, but the other places that you might look are a section called royalty's, particularly, if you're doing a license agreement, or if it's a publishing agreement, royalties are going to be an important part of your compensation, and it's probably going to be addressed separately from just compensation for creating the thing. Finally, one place where you might not think that there are money terms, but there often are is in the terminations section. The termination section should be clear that if the contract ends early, if it's terminated, you get paid for the work that was done before termination. A lot of times for whatever reason, this language is missing, it's really easy to add back in, so check your termination section and make sure that it's clear, if the contract ends early, you get paid for work that was done before the contract ended. 7. How Rights Work in Creative Services Agreements: Let's talk about rights and how they really work in a creative services agreement. Primarily, we're going to be talking about copyright in this instance. There are three questions that we want to make sure your contract answers and the first question is who owns the work? Who owns the right to use the work, is what we're really talking about. So, who owns that copyright? When do they own it? Do they own it from the very beginning or do they own it only after certain conditions have been met? Then finally, what can you do with the work if your client owns the rights to it? So, can you use it in your portfolio? Can you post it on social media? What permissions do you have if the client is the owner of the copyright? Now there are three basic ways that copyright works in creative services agreements. A copyright license which is giving permission to the client to use the work, a copyright transfer where ownership of the right is transferred from you to the client at a particular point in time and work made for hire. A work for hire term is where the client is going to own the work from the very beginning. As we go down this row, your rights are decreasing in the work and their rights are increasing because at the top with the copyright license, you're retaining ownership of the copyright but you're giving permission to the client to use it for a particular purpose or a particular period of time. Whereas down at the work made for higher level, the client owns the rights to the work from the very moment you create it and you don't have any rights to the work unless the contract gives you a license. With copyright licenses, there are two basic kinds. There are exclusive licenses which is where you are giving permission exclusively to the client to use the work in a particular way. That means that for as long as the license lasts, the client is the only entity that can use the work in that way. You won't be able to use it in that way. You won't be able to give other people the right to use it in that way, only the client gets that permission. The other type of license is nonexclusive and that means you'll be able to continue using it in whatever way the license describes for the client and you'd be able to give that right to somebody else. Obviously, an exclusive license is much more attractive to clients than non-exclusive licenses. But it really depends on the work itself and how they're intending to use it. For instance, there are a lot of photography sites where photographers can upload photos and give people rights to use that photo in their own work. I used one of those photos as the cover image for this class. In that instance, I'm getting a non-exclusive license because it doesn't matter if I'm the only one who's using it. It is less important that it remain exclusive for me and that's better for me too because it means I have to pay less for that right. When we're talking about copyright transfers and work made for hire, you will not own the copyright in the end. The difference is that with a copyright transfer, the copyright becomes theirs when certain conditions are met. So, the copyright might transfer upon full payment, it might transfer upon signing the contract, but there is a point in time when the copyright is transferring from you to the client. With work made for hire, the copyright is the client's from the very moment you create the work. Work made for hire is an exception to copyright and it basically says when somebody commissions work, it fits into one of certain number of categories and there's a contract that is explicit about it. The copyright owner from the very beginning is the person who commissioned the work not the person who created the work. So, it's important to understand which situation you're dealing with because it can impact what other types of terms you can use. For instance, we talked earlier about copyright transfer being conditional upon full payment. In a work made for hire situation, you could not use that term. So, with a copyright license, you're going to own the right, you're going to own the right forever. You're just giving permission to your client to use the work in a particular way or for a particular period of time. With a copyright transfer, you own the rights initially and then they'll own the rights eventually whenever the particular conditions are met. You will need permission if you want to continue using the work. For instance, in your portfolio, you'll need the contract to be explicit about that. With work made for hire, the client is going to own the rights from the very beginning. You're never going to be the copyright owner. So, you want to make sure that your contract is explicit about the permission that you have to use that work whether that's being able to be include it in your portfolio, being able to include it on your website, being able to share it on social media. If you want to do anything with the work, you're going to need the contract to give you that permission. In the next video, we're going to talk about what to look out for when rights are described in your agreement. 8. Making Sure the Rights are Right: So, what should you look out for when rights are described in your agreement. Well, if the work is work for hire you do not want it to be for a personal project. So, you don't want work for hire terms if the project is personal and the reason why is that with work for hire from the very beginning the client is going to own the copyright to the work. So, if this is a personal and important project to you you don't want to hand over ownership of the rights from the very beginning. The other thing is that with a work for hire or copyright transfers you don't want to use those for creator owned work. I hear a lot of people talk about creator owned particularly in comics and with creator owned work what that means is that you own the copyright and if you're doing a work for hire or a copyright transfer you'd no longer or never own to the copyright. With creator owned work it should always always be a license. It should never be a transfer or work for higher terms. If it's work for hire or copyright transfers you want to make sure that you're adequately compensated for what you're giving up. You don't want a situation where you're not being compensated for the right that you are giving the client. So, for instance I might charge more for a work for hire job than I would for a job where I'm giving a copyright license because with the work for hire job I'm actually giving the client more than I am in the copyright license situation because the client will own the copyright in the work for hire job from the very beginning and I will never be able to use it unless the contract gives me that permission. So, I want to be compensated not only for my labor but for the benefit and value that I'm giving the client. With copyright licenses you want to avoid situations where they aren't clear about the time that they last or the subject matter that they apply to. Copyright licenses should be clear about how long they last and what areas the client is allowed to use the work in. So, it's okay if you want to agree to all media throughout the world but you can also agree to print media or digital media or online only. You want to make sure that your license is clear about the permission that you're giving. You should never see a situation where it says that the work is work for hire and the copyright transfer and a copyright license. That can't happen, it's going to be one or the other. You don't want a situation where it confuses the copyright ownership of the work. So, it should be work for hire, a transfer, or a license. The exception is when we're dealing with a work for hire agreement occasionally we're going to be seeing situations where it says, "Hey, this is work for hire but if it's not we're transferring copyright from the very beginning", and the reason that lawyers write it that way is that work for hire actually has some very particular requirements and if you don't meet those requirements, the work can legally not meet the definition of work for hire. So, to avoid a situation where the client loses ownership because it didn't meet the legal definition of work for hire, the lawyer will say, "Hey, this is a work for hire", but if a judge says it isn't it's a copyright transfer and that is okay. You just don't want it to say this is a work for hire and a copyright transfer because that can't happen. Copyright transfer should have clear triggers. It's very similar to payment terms but we want to make sure that we're clear about when ownership is transferring and what is required for that ownership to transfer. If you want to use the work make sure that the contract gives you permission to use the work whether that's in your portfolio, on your website, in social media whatever it is you want to make sure that the contract is clear that you have that right. If you want to use the client's name or logo on your website you also want to make sure that the contract gives you permission. The client has a trademark interest in their business name and in their logo and for you to be able to use it legally, you need permission from them to do so. The easiest way to do that is to include a section in your contract that gives you that permission. So, where do you find terms about rights in a contract? The first place, easiest place is going to be in the ownership or authorship section of an agreement and it's going to be really explicit about who owns what and who created what and if there's a transfer when that happens. You might also find language about copyright ownership of rights in work product or a section that's explicitly called work for hire or licenses. Now, copyright transfers are sometimes called copyright assignments and so you might find language about assignment in your contract but read it very carefully. This isn't always just about the copyright. Sometimes it's about assigning the entire contract to another party so it'll say for instance that you can't assign your rights to another party and basically the reason it's saying that is your client doesn't want you to agree to do the work and then assign that work to somebody else and turn it in as your own. So, you might find language in an assignment section about rights about copyright, about trademark but more than likely it's going to be talking about signing the contract itself to somebody else. 9. Final Thoughts: Most contract problems can be traced back to how the work, money, or rights are described. By paying special attention to these areas, avoiding assumptions, and using clear plain language, you can avoid having a troublesome contract. It can take a lot of practice to get these things right. That's why I've put together a checklist to help remind you what to look for the next time you're reviewing a creative services agreement. You can download the checklist using this link. That's, and you can use the checklist to help you navigate the class project. I'm a big believer that there are lots of ways to solve a problem, and we become better more creative problem solvers when we have the opportunity to see how others have tackled the problem. The class project asks you to review a contract and advise your friend on the one or two things that you would fix before she signs it. By posting your solution in a class project area, you'll be contributing to the creative community and helping all of us improve how we tackle contracts. I hope you found this class helpful. Please leave a review so others will know what to expect when they're considering taking this class, and follow me here on Skillshare, so that you can get updates on new contracts for creative freelancers courses. The next class is going to be all about work for hire terms. When you should agree to them, when you shouldn't, and how to get the best deal possible when you do. See you then.