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Why You Want A Contract For Your Creative Work — And The Minimum It Should Include
Even if you don’t want to commercially sell your writing (or other creative endeavor), if someone else wants to use it, _you should have a contract_. And while that contract doesn’t need to be super-fancy, there are several parts that it needs to contain.
This isn’t just a hypothetical; I’ve got real-world examples here (though my privacy policy is in effect). **Also, I am not a lawyer, I am not _your_ lawyer, and this is officially _not_ legal advice, as I am not a lawyer.**
That said, this is the stuff _I_ look for as a layperson and as an author, and what I made sure was included when I was a publisher.
## Even If You’re Not Getting Paid, Only Grant Others Rights With Intention
I have a friend who writes well, but has absolutely zero interest in pursuing being published. While they call their work “fan fiction,” it’s fan fiction about their own original character, so there’s no rights complication, which makes this example all the better illustration for us.
They post their fiction on one of the fan fiction sites, but it’s behind a login due to it being of an sometimes adult nature (in the sense of problematic relationships as well as naughty naughty smutty bits). They got a request via social media to repost the fiction about that character elsewhere so their friend could read it.
Yes, it was that vague: “your writings about [Character Name].”
I told my friend, in no uncertain terms, that they should absolutely _not_ just agree, even if they have no intent of selling the work or trying to get it published.
My reason was simple: There was a lack of clarity as to where it would be published, how long they’d have the rights to _keep_ reposting (or republishing) the work, which works specifically or the _entirety of their fiction related to that character_ , whether that person could then _charge_ others to read the work, whether minors would have access to the work, and whether it would be put somewhere that AI agents could (or would) train on the data.
Regardless of the stated reason (“so my friend can read it”, which is odd since it’s posted to a fanfic site already), without a contract there’s no specified limitations on what someone else can and can’t do with your work, and for how long. If the person’s on the up-and-up, then writing down those limitations is not going to bother anyone. Perhaps it may seem like overkill, but since you’re just putting in writing what they said they were going to do anyway, why should they care?
For the conflict-adverse out there, the point of the contract here is to _avoid_ conflict down the line. **By being clear about what is happening and why, there’s less room for misinterpretation,** **with a goal of avoiding conflict later on.**
See also Review: Viewing Yellowjackets (Showtime) From A Certain Point Of View
Which is, unfortunately, a good segue into the other example.
## Whether Through Incompetence Or Malice, Bad And Missing Contracts Cause MORE Pain And Conflict
A different friend, Sue, was approached by Glenn a few months ago. Glenn (2) was developing a product for tabletop role-playing games, and wanted to use Sue’s setting as part of the product. Glenn also approached me, and I declined to participate.
After seeing the contracts now, that was absolutely the right choice.
_Because there essentially is not one_.
There is an NDA, yes. It is extremely poorly drafted, overbroad, and violates requirements that it itself invokes (specifically the Trade Secrets Act; the NDA omits required whistleblower protections required by that law). The only portions that actually pertain to Sue’s IP in the slightest are these two bits:
> Confidential Information includes any and all data, assets, or logic contained within the [REDACTED] Google Drive directories, Discord servers, Slack channels, and Canva Business ecosystems. This includes, but is not limited to [list of game mechanics]. …. Working Documentation: All internal files, chat logs, prototypes, and asset pipelines accessible via the secured corporate environments.
Simply saying “if you post this in this channel, it becomes our trade secret” does not automatically make it so. The fact that you’re in discussions to _acquire_ that IP, yes, absolutely. Already existing work **itself** does not automatically become **someone else’s** trade secret because you discuss the IP in their communication channels. (1) That’s a patently ludicrous claim.
An additional “deferred compensation & transition agreement” further muddies things by calling “participants” volunteers until the company secures external funding, at which time they “immediately transition into a formal Salaried Position [sic] at a rate commensurate with my level expertise and role mapping.” Plus a signing bonus that, when funding is secured, “serves as the immediate compensation for loyalty during the inception era,” whatever that might mean.
Your alarm bells should be going off. There is no mention of when, exactly, that bonus will be paid (despite the phrase “immediate compensation” it just says that it “serves as” compensation. There is nothing specifying “within 60 days of angel investment” or the like, and it sure sounds like payment amounts are going to be entirely at someone else’s whim _at that time_.
It _is_ possible to say “I’ll pay you later for work now, based on future income.” I’ve done it myself when running Kickstarters. And I clearly specified what portion of royalties (if any) or the flat rate or flat payment for the work would be, contingent upon the Kickstarter being funded.
See also Learn To Write Better From Films (feat. Morbius)
These laughably bad documents do none of these things.
And you’ll notice that there’s still a whole lot of nothing about intellectual property for the _setting_. While there’s some verbiage in an “onboarding document” about game _mechanics_ as trade secrets (1), the whole relevant section is this:
> III. INTELLECTUAL PROPERTY & TRADE SECRET NOTICE All verbiage, game mechanics, mathematical formulas, and linguistic structures presented during your tenure are the exclusive property of [REDACTED].
>
> Non-Disclosure: You are privy to a 50-year trade secret discovery. Unauthorized disclosure of any logic core, is a direct violation of international trade secret law.
Glenn’s “onboarding document’s” overbroad “linguistic structures presented [sic] during your tenure are the exclusive property” is just ludicrous. It is never defined what “linguistic structures” covers or “presented” means; is he literally trying to claim that he owns parts of speech if you just say it around him? “Logic core?” I’m pretty sure that logic is not a trade secret. Please. At best, it showcases Glenn’s ineptitude and inexperience, at worst, it showcases an attempt at a predatory rights grab.
It is worth noting at this point that Glenn allegedly **PUBLICLY** posted a non-trivial amount of Sue’s not-previously-published work that was produced prior to her working with Glenn, without express permission, and without attribution to Sue as the author. Prior to posting it, Glenn had refused Sue’s attempts to get clarification as to rights and permissions.
While Glenn’s incompetence (or malice, or both) is largely to blame, Sue also should have known better.
## The Parts That Were Needed
1. Who the contract is between, _exactly_.
2. What work(s) the contract covers, _specifically._
3. What rights, explicitly, are being granted to the work by the creator, and that **all other rights are excluded**. In general, _the entity being granted the rights should be able to use them_.
4. How long exclusivity and non-exclusivity last.
5. The context in which the work is going to be used.
6. A reversion clause and/or kill fee.
You can see all of these portions in my old contracts, which I have kept up for exactly this reason. I never asked for film or audio rights as a publisher, because I was not going to use them and did not have the setup to do so. I asked for exclusivity for a period of time, and non-exclusive rights… but _only_ as part of the anthology that a story appeared in. That meant I couldn’t just post the story elsewhere, or release it separately, or train AI with it (even though that didn’t exist when I made these contracts). There’s an explicit reversion clause, so I couldn’t just sit on a work forever. There’s an audit clause. And so on.
An important addendum: Some publishers _will_ try to get unspecified rights, or rights to methods of distribution that have not yet developed. Whether or not that publisher is compensating you sufficiently for those future rights is your decision.
See also Value Flows Toward The Author. Always.
Because Sue did not hear the alarm bells early on, she’s facing a _lot_ more difficulty, grief, and heartache now trying to fix the damage caused by Glenn’s abuse of her creative content.
## Ask For Changes, Clarifications, And Specifications
Contracts, in general, should be regarded the same way you’d regard a “Wish” spell, or an agreement with the Fae. The wording of _how_ you agree matters as much as the agreement itself. **Specificity is your friend.**
If you find yourself in a position like Sue’s, please feel free to use my old contracts as a starting point for negotiation. **If you’re dealing with substantial amounts of money,_consult a lawyer versed in contract law_ prior to signing anything, even if a contract meets all the marks I point out here.**
As a final note, it _is_ possible to ask for changes to a contract yourself. The contract for my first “pro” fiction sale came with an exclusive “in perpetuity” clause. If I had just signed that contract, _I would not have the rights to republish my own story, even though it came out 17 years ago_. Instead, I asked for it to be modified so they had five years of exclusivity and non-exclusivity afterwards to use it as part of the anthology only.
**As far as I know, I’m the only author in that anthology who has the rights to my own story again.** Because I asked.
So do not hesitate to consult with a lawyer. Do not hesitate to ask for provisions to be changed.
**And if they’re suddenly really nervous about writing down how they are going to use your work, and refuse to clarify,_walk away_.**
Featured Image by Andreas Breitling from Pixabay
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(1) I am not discussing their “trade secrets” or naming them because, well, they’re not exactly trade secrets, no matter how many capitalized letters you put in there, or how much you claim they are. It’s stuff that I’ve seen in TTRPG circles (though perhaps less formally) for over a decade. “Glenn” has formalized what I would call a bunch of house rules familiar to many who play TTRPGs and added a bunch of hype and capital letters. Yes, I refer to this same footnote twice.
(2) In case “Glenn” sees this and recognizes himself: Hey dude, you want to out yourself as the person I’m criticizing here, go for it. Or you can take this as a chance to get your house in order quietly, so that people don’t connect you with what I’m relaying here. Your decision.