The Model Contract Project
Why We Created a Tool Kit for Freelance Journalists to Negotiate Terms that Keep Them Safe
By Andréa Schmidt and Anna Therese Day
An international news story is breaking, and a freelancer steeped in regional expertise shoots off a pitch. An editor emails a quick reply: “Sounds good. How soon do you think you can get us the story?” What comes next — the guidance offered, the rate promised, the costs of the assignment, the obligations of the media organisation to the journalist and her safety — varies wildly across our industry. And it’s all just as likely to be negotiated in rushed emails or WhatsApp messages as it is to be articulated in a proper contract. No freelancer wants to risk losing a story as she (or he) waits to see paperwork and then haggles with an editor over terms. But if she dives in without a thorough contract, it might cost her — or worse, her local team — much more.
When we think about freelance journalist safety, we often think about Hostile Environment and First Aid Training (HEFAT), kidnapping drills, navigating check points, or procuring flak jackets, helmets and other kinds of Personal Protective Equipment (PPE). But contracts have an important safety function too. In fact — because they establish not just a media organisation’s expectations of freelancers, but also their obligations to them — contracts probably play a greater role in establishing the necessary safeguards and resources (or dangerous lack thereof) than just about anything else.
As a freelancer, when you’re offered an assignment, your commissioning editor is likely to present you with a draft of the organisation’s standard publishing agreement. As with any new contract, it’s up to you to read all the fine print and make sure the terms you sign onto are ones you can afford to live with. If he doesn’t offer you any contract at all, and expects you to carry out the assignment without one, you have an even bigger challenge to address.
Either way, we’ve got you. ACOS Alliance, in partnership with the Frontline Freelance Register (FFR) and with the legal support of The Cyrus R. Vance Center for International Justice, has created a new tool, a Model Freelance Publishing Agreement. As ACOS board members — and journalists with years of freelance experience — we helped shape this document. We hope it will help freelancers decipher the legalese, propose more favourable terms (or an entire contract if needed) and negotiate safer, more professional working agreements.
Key Safety Issues in Contracts
A contract should establish the rate at which you get paid for your work, when you get paid, and what your deadline is. It should also establish whether you keep the copyright to your work, whether you’re licensing your work exclusively or non-exclusively and for how long, or whether you’re “working for hire” — in which case the organisation paying you owns the rights to your creative labour.
But there are also other important things a contract should establish that can have outsized implications on your health, safety and well-being — not to mention that of your team, which might include local fixers, producers, interpreters and drivers.
Expenses
A contract should always establish what kind of expenses the media organisation hiring you will cover. Will they meet the cost of a flexible flight if you’re working during a pandemic? Will they cover the cost of buying or renting PPE appropriate to the assignment? In a conflict zone, will the budget cover the rates of a trusted and reliable fixer and driver?
Just as crucially, the contract should also state whether the company will advance these costs so that you don’t have to cover them out of your pocket, or whether it will reimburse you when you present them with receipts for pre-approved expenses.
Because FFR’s journalists work in hostile environments around the world, its position is that the refusal to advance expenses for freelancers is not only unprofessional, but also unethical. News organisations are notorious for delaying payments to freelancers, and stories in war zones are always expensive to cover. Freelancers should not be put in a position where they’re forced to make a less safe choice — eg., of fixers, drivers, accommodation, insurance, or protective gear — simply because we lack the cash flow of a major media organisation. For our community, many news organisations’ refusal to advance expenses is truly a matter of life and death; it’s asking us to work in the same conditions that have already led to the deaths of our colleagues.
That said, some assignments incur limited expenses, and in those instances it may be appropriate for you to be reimbursed once it’s completed. For this reason, the ACOS Model Agreement includes language for this option. If the company is going to reimburse you expenses after they’ve been filed, the contract should also specify a reasonable period of time within which both filing and reimbursement should happen. We spoke with a range of freelancers as we drafted iterations of this template agreement and we repeatedly heard frustration at how long it can take to get expenses reimbursed, the impact that has on freelancers’ ability to take on new assignments, whilst also covering basic living cost and the difficulties they had holding media outlets accountable for these delays. A clear reimbursement deadline in a contract should help.
Insurance
Contracts must establish whether a media organisation is going to insure the freelancers it hires. There are basically three options: the first is that the company enrols you in the insurance they offer their employees. This is usually the best option for a freelancer. It’s also pretty rare. Second option: you’re responsible for buying your own insurance but the company will reimburse you for it like any other expense. Third and worst case scenario: you’re responsible for acquiring your own insurance at your own expense.
You need to establish if this is the case before you sign a contract, because that additional cost of insurance may force you to raise the rate you charge for your work.
In each case, you want to make sure you, your equipment, and your local team, are properly insured. Will the insurance cover your camera lenses if they’re stolen while you’re moving around a public place, or only if it was locked in the production vehicle? If you’re traveling on assignment in a conflict zone, will it cover you for accidental death or injury? Will it cover medical evacuation and medical treatment? Your insurance should always cover the location of the assignment and the risks inherent in it. And the contract should specify what kinds of insurance will be extended to you (or reimbursed) by the company. You can find out more about different insurance options at the ACOS insurance resource page.
As professionals in this field, most freelancers are acutely aware of their insurance needs and how crucial the details and clarity of any policy are to their safety. Yet, we’ve found that many freelancers have difficulty getting clear answers and documentation before they’re rushed off on assignment with only the company’s assurances.
For example, when one of FFR’s cinematographers was called for an assignment in Yemen, he asked a range of questions about the news organisation’s insurance policies, and even requested the documentation to review. He was assured that his insurance needs were covered, told they simply couldn’t find the paperwork, and asked to hurry up, sign the contract, and get out the door. Upon his return, he discovered that his gear had been better insured than he was…while he reported in one of the most dangerous conflict zones on earth.
The ACOS Model Agreement is modular, and lays out several modifiable options for each of the key issues above, as well as a number of others that have less direct implications for safety but a lot to do with fairness. For each issue, we’ve colour-coded different options according to how favourable they are to freelancers. The best options for freelancers are coded green; less favourable but OK are blue; relatively unfavourable are coded red.
Commissioning Editors Play a Key Role
Commissioning editors are usually the people with whom freelancers negotiate contracts. Just as it is crucial for freelancers to understand their contracts and to advocate for terms that will mitigate risks, it’s equally vital that commissioning editors understand what they’re asking freelancers to sign, and be able to advocate for them. As freelance journalist and filmmaker Safa Al Ahmad observed in a recent episode of The Back Story podcast, if something does go wrong, “you’re as protected as your commissioning editor is willing to go to bat for you.”
Indeed, contracts are among the ways commissioning editors can play a key role as champions for freelancer safety and fairness within their organisation. This involves being able to communicate with other departments like finance, legal and HR about them.
True story: One of the authors was once a commissioning editor for a new digital media organisation that, when she was hired, was extending contracts to freelancers in the name of a legal entity that did not exist. That was corrected, but the new contract wasn’t clear on whether freelancers were insured under the company’s policies or not. When she asked, upper level managers couldn’t say for sure. Human Resources (HR) answered yes: freelancers were covered by the same general liability policy as staff. But weeks later, after several teams of freelancers had returned from reporting trips and one team had gear stolen, HR walked it back: the freelancers actually weren’t covered after all and should have obtained their own insurance. It became clear that no one knew what was up, and that internal communication was dysfunctional. Of course, it was freelancers who bore the risks, and were left to absorb the costs.
Negotiating freelance contracts with all parties before freelancers go out on assignments is usually a pretty good indication of whether those lines of communication exist, whether they’re robust enough to hold up in a crisis, and where the gaps lie. Our hope is that the ACOS Model Agreement will help make it clearer and easier for commissioning editors to open those channels and to advocate for their freelance colleagues.
We also recommend that contracts establish points of contact beyond commissioning editors — individuals in human resources and finance departments with whom freelancers can communicate about issues like harassment, insurance, and timely payment, as well as reasonable windows of time within which you are required to respond to each other.
Contracts in the Time of COVID-19
As we write, some freelancers are being assigned to cover the COVID-19 pandemic. To work responsibly, protecting ourselves and our subjects, we’ll need to take specific safety precautions. Many of these will cost money. Additional costs of covering COVID-19 will likely include flexible flights and appropriate PPE. They might also include the costs of living for a quarantine period required upon arrival in the country of assignment or upon return home, as well as a rate to compensate the freelancer for that time.
Like all expenses, these should be discussed with commissioning editors ahead of time, and included in a budget that is approved and appended to the contract for the assignment. Ideally, news organisations should advance these costs to freelance journalists, so they don’t face even greater additional costs out of pocket in such an insecure time.
On the insurance front, ACOS Alliance’s conversations with insurance administrators show that it’s virtually impossible to find a policy that covers COVID-19; most have excluded it. And if you are travelling on assignment, it is currently very difficult to find Medevac companies that will evacuate people with COVID-19. This makes clear communication with commissioning editors more vital than ever right now. It’s important for editors to conduct a thorough risk assessment with freelancers assigned to cover COVID-19, and to be straightforward about what the commissioning news organisation is prepared to do if a freelancer gets sick on assignment, or right after. Will it pay for testing? Will it continue to pay the freelancer while she’s sick? Or extend health insurance on an emergency basis? If these commitments are made, they should be included in the contract.
ACOS is currently developing a resource for news organisations to help them adopt safety protocols that respond to the extraordinary circumstances of COVID-19 and promote the safe commissioning of freelancers.
Moving Forward
Our intention is for the Model Agreement to help freelancers propose contracts that protect them when organisations don’t extend their own. It is also created to help freelancers quickly and clearly negotiate terms of existing standard contracts with commissioning editors before they leave on assignment.
To this end, the ACOS Alliance has also produced two support documents to accompany the Model Agreement. The first explains key issues addressed in the template, some of which we’ve touched on above. The second is a summary of the agreement, meant to help interpret the key terms in the agreement, free of legal jargon. Keep in mind that it shouldn’t be used as a legal document. Indeed, while the Model Agreement itself was drafted by attorneys in New York, we’d be remiss if we didn’t underscore that it is not intended to replace good legal counsel.
We’re already finding that the Model Agreement is starting conversations. So we’re going to update and improve it periodically. For example, liability isn’t dealt with in the current template, but we’re hoping to add a section that addresses it in the coming months.
We hope that over time, the Model Freelance Publishing Agreement will help make media organisations more accountable, and contract conversations between commissioning editors and freelancers faster, easier and less disempowering. After all, it’s not inevitable that freelancers be screwed -- we should have the tools to propose terms and conditions in our contracts that keep us and our colleagues safe, and to negotiate thoughtfully and professionally for them.
Andréa Schmidt is an award-winning journalist and filmmaker. She’s a board member of the ACOS Alliance and has worked as both a freelance journalist and a commissioning executive producer.
Anna Therese Day is an award-winning freelance journalist and filmmaker. She’s a co-founder of Frontline Freelance Register and a board member of the ACOS Alliance.
