Keeping Freelance Talent Happy


by Jon Lee Andersen

When the editors informed me that this issue of OZ would focus on the world of freelance creative individuals, I went back and looked at past articles I had written that deal with or touch on the various issues that arise in contracts with freelance talent.

A little over a year ago I wrote an article titled "Independent Contractors and the Work Made For Hire Agreement," in which the most essential parts of the contract and relationship were discussed. That article is still a good primer on establishing a solid relationship. Since that time, I have counseled a number of both commissioning parties and freelancers on arrangements and agreements, and have seen several issues that were not directly addressed in the earlier article.

Here, then are some other matters that an agreement between a commissioning party and a freelance party might address:

Confidentiality. Freelance copywriters, illustrators and graphic artists who are engaged by advertising agencies or by in-house advertising or marketing departments are frequently made privy to confidential information. It may be a new product launch they will be working on, or a comparative ad campaign that is as yet unknown to the competitor. It might be access to sensitive customer information, manufacturing data, trade secrets, or even product problems. Whatever the information, it is certainly in the interest of the commissioning party to see that it remain confidential.

Clauses can drafted into freelance contracts that require a commitment by the freelancer tomaintain the confidentiality of the information, and to turn over any confidential information the freelancer might possess at the end of the assignment. Occasionally there is even a clause forbidding the freelancer from disclosing having been retained. I have found though, that there is usually little difficulty in reaching a mutually acceptableconfidentiality agreement.

Conflicts of Interest. Discussions in this area usually address two aspects of the relationship: (a) a representation or statement by the freelancer that he or she is not prohibited by any other agreement, commitment or arrangement from undertaking the contemplated assignment; and (b) an agreement that during the assignment (and sometimes for a defined period following completion of the assignment), the freelancer will not undertake to provide services for a competitor of the commissioning party.

It is this later requirement that produces the most trouble. The commissioning party is in somewhat of a dilemma: It does not want the freelancer working for its competition, but by restricting the freelancer's freedom it makes it more likely that the freelancer will be determined to be an employee, which the commissioning party also does not want.

And from the freelancer's point of view any restriction beyond the term of the assignment is anathema; freelancers typically consider any restrictions a form of indentured servitude.

Of course, much of the bargaining done in reaching agreement depends on outside factors, such as how badly the commissioning party wants this particular freelancer's services or, on the other side, how badly the freelancer wants the job. The usual resolution is to provide for a non-compete arrangement only during the term of the assignment, or for a very short period (30-90 days) following completion.

Inventions. Although issues concerning inventions seldom arise for copywriters or illustrators, they do occasionally poke up with web designers. Commissioning parties always want the rights to these inventions, discoveries and innovations, and freelancers always want to keep them, granting the commissioning party only a license to use the discovery. There are myriad solutions to this "who shall own" quandary, ranging from all rights to one party or the other to a sharing arrangement of some sort. The end result is most often determined by factors such as underlying values; economic standing and wherewithal; the nature of the invention, discovery or innovation; and sometimes by underlying copyright or trade secret laws.

In shorthand:

When a company has lots of secrets

Like mansions and small private jets

Their freelance agreement

Is stronger than cement