Successful Freelancer Spotlight: Erik Sherman

Good Monday morning readers!

Today, I’m shining the spotlight on Erik Sherman, a full-time freelance writer, editor, photographer, and consultant who is considered an expert in contract issues in many freelance circles. Erik’s work has appeared in the New York Times Magazine, Newsweek, Fortune, and USA Weekend.

Erik also is working with a friend on a new travel book about Boston, based on the work they did for Massachusetts Curiosities. And he teaches some online classes on business planning and marketing and blogging about the high tech industry at industry.bnet.com/technology.

Given our recent discussions on The Golden Pencil about clients, payment, and learning to protect yourself and your freelance business, I thought Erik would be a great resource.

How long have you been freelancing, and how did you get your start? What did you do prior to freelancing? What kind of freelance work do you do?

Back in the early 1990s, I was in corporate management. I left and became a business consultant in 1994. In early 1996, I thought that writing some articles would add to perception of me as an authority. Eventually, I had so much work in articles that I dropped the consulting.

In many freelance circles, you are known as the go-to person when it comes to contracts. Can you tell me how/why you got so interested in this particular aspect of the freelancing business?

Back in my corporate product marketing days, I had to negotiate agreements with the likes of Microsoft and IBM. I worked with an in-house corporate lawyer to better understand the language, and I’ve always had an interest in law. When I went into business on my own, I realized that the more I knew about contracts, the more secure I’d be in negotiation. But it’s an odd reputation to be saddled with. People seem surprised when they learn that I know a fair amount about marketing and business practices, or that I’m a strong editor and have a good sense of writing structure.

Have you personally had experiences with bad contracts? If so, can you talk a little bit about these? What were the lessons that you learned?

We’ve all had “bad” experiences. For example, I remember not being able to get a corporate client to sign off on a draft and having to wait months to get paid. So for corporate work I started to include a clause that set a time limit on reviews, with automatic acceptance coming after that. That’s the thing about contracts. You’re going to make some mistakes along the lines, either not considering terms that you should, or not understanding seeing how language could be interpreted. So you use those experiences to learn. So long as the mistakes you make are different going forward, and not the same ones, you’ll be doing better.

What are the most important pieces of advice that you would offer to freelancers in regard to contracts?

Read contract wording closely and literally, because you’re saying you’ll be held to those words.

Are you noticing any disturbing trends with regard to contracts in recent years? What can freelancers do to protect themselves?

The disturbing trend is that freelancers more frequently want others to tell them what to do when it comes to contracts. If you’re going to work in this area, you have to educate yourself. There are books on freelance legal issues and contracts. I’ve occasionally taught a contracts class. There are some great Web sites on the subject.

In this current economy, is there anything that freelancers should be doing more of or less of with regard to signing contracts? Are there certain things that freelancers need to be especially aware of right now?

Many writers will decide that they must be desperate because everyone says how bad things are. The more desperate you let yourself become, the less scrutiny you’ll apply to contracts. Business may be a bit tougher, but it hasn’t fundamentally changed.

Can you provide any real-life examples of why it’s so important for freelancers to understand what they’re signing? Are there any horror stories that you can point to that underscore the importance of looking over contracts carefully?

I heard a great story from one lawyer. He had a client who wrote a book that said some unflattering things about someone who had died. The person’s estate, which was in Tennessee, sued the publisher for libel. Virtually nowhere in the country can you libel the dead—except in Tennessee. In the publishing contract, there was an indemnification clause. So you’d think that the writer was in trouble. Only, his lawyer pointed out that the contract also provided for interpretation under New York law. So a type of clause that most people don’t think twice about gave the writer an out.

What are the most common mistakes that freelancers make with regard to contracts?

The big one is not to read them, or to throw up their hands because the writing is complex. That’s always a mistake. Reading a contract may not be easy, but it’s not impossible. Read slowly and unravel what the sentences actually say. About 90 percent to 95 percent of a publishing contract is going to be in normal English. For the specific legal terms, there are paper and online dictionaries of terms.

Another common mistake is to take every assignment as a life-and-death issue. If you cannot walk away from a potential assignment, you are a slave to your circumstances because you act without free will. Always remember that you can say no and find another client.

As you know, contract language can be very confusing even for savvy, longtime freelancers. Most freelancers don’t have the funds available to hire a lawyer every time they have to sign a contract, so what resources would you recommend that people tap for guidance?

I mentioned much of this before, but one thing I’d say is that if you’re dealing with a large amount of money—from a book contract, perhaps, or a significant corporate contract—get a lawyer to look at the contract. It will cost you hundreds of dollars, but that will be a small amount in comparison to what you could lose.

What is the best way to request changes to a contract? I know that some people simply make the changes on the contract itself and then send a signed copy back to the editor or client. But I also understand that this is not always the wisest approach. What do you recommend?

I think making changes and signing a copy without saying anything to the other people is a mistake, because it is trying to negotiate from fear. You don’t want to bring things up, so hope you can slip them in. You’re always better off discussing the changes you want first, and then coming to agreement over the language. That lets you find out what changes you can get, what you cannot get, and where you might need a bit more creativity. For example, I was negotiating with a huge media company. The lawyer insisted that they own copyright, because they’d be in a better position to take action against infringement, an argument that had some merit. So I negotiated the ability to make any use of the material I wrote, including selling it to other venues. I didn’t own copyright, but could still do what I needed to. If you’re too stuck on what you’re “supposed” to get, you may miss solutions that work for your business model.

I think some freelancers fear that if they request changes to contracts that they’ll be less likely to receive assignments in the future from a client or publication. Have you found this to be true?

Overall, I’ve found that asking for changes didn’t hurt future sales, because we had already worked out the issues. Some editors probably avoid future assignments to someone who “causes trouble,” but do you really want to keep working for a client that is only satisfied if it gets everything it wants and you are not allowed to complain? What will you do when a check doesn’t arrive? Swallow the loss because you might not get another assignment? Work is misery if you cannot stand up and live like a human being, not a mouse. Also, some companies will use the “this is starting to take too much time” as a tactic to get what they want. A newsweekly lawyer tried this on me. My answer was, “I understand. Now, if we can just get through these last few items, we can both get back to other things.”

Are there situations when you would advise freelancers to walk away from a work assignment due to contract issues?

Absolutely, but the situations will depend on the freelancer’s own needs and circumstances. If a mortgage holder is going to foreclose on your house, you don’t have as much room to balk. If you’ve been working to develop a broad clientele base, then you have more room, because there really are other assignments out there. For example, I won’t sign a contract that includes an indemnification clause that kicks in for alleged breaches of the contractual warranties.

Are there situations when it’s better to work without a contract? And in the absence of a contract, does a freelancer retain any rights at all?

Under the U.S. Supreme Court decision in the Tasini v. New York Times case, in the absence of a contract, the writer only sells First North American Serial Rights. But contracts are about far more than what rights you license and retain. There’s payment, grounds for accepting work, who pays expenses, when an assignment is due, what the definition of the assignment and the scope of work are. A contract is an attempt to clearly state the grounds under which you’re doing business and anticipate what could go wrong and set forth how the parties will handle things if that happens. If there is no formal written contract, then send an email with all of the working details to the client and get the person to respond, so you have proof that they received it.