BackThursday 27th October, 2011
Whose terms are they anyway? A cautionary tale for copywriters
This morning a friend sent me a jaw-dropping email correspondence between a copywriter and a potential client.
So jaw-dropping that I felt it only fair to share it with fellow copywriters and other freelancers.
If you don’t want your clients reserving the right to ditch your work in return for a £1 fee, dictating payment terms, or giving themselves freedom to sit on your copy for months on end (without paying), then I suggest you read on.
Bare-faced cheek
The correspondence kicked off innocuously enough.
The copywriter gave the client a nudge about his proposed project. The client responded with an outline.
So far, so good.
But then the client continued:
As regards your terms:
2. Use
(a) This cannot apply.
5. Process & Timescale
(d) We cannot accept this.
(e) We cannot accept this.
(f) Our agreement must be obtained before any costs beyond the initial
quote
are incurred.6. Copywriter Payment Terms
(a) Payment terms are 30 days from date of invoice . . .
7. Rejection
(a) The rejection fee is £1. If, upon receiving your first draft, we
consider that you are too wide of the mark, we must have the right to
cancel
the agreement, without obligation.(b) We cannot accept this.
I apologise again for the delay and look forward to hearing from you.
That’s right. The client took a large blue pencil and ran it through the copywriter’s stated terms and conditions.
But were those terms and conditions unreasonable? I’ll summarise them so you can judge for yourself.
- 2a. The copywriter grants use of words for the reason commissioned, but reserves the right to charge extra if they’re used in different media. (In other words, the copywriter is asking the client to pay for what’s commissioned and not help themselves to unlimited use).
- 5d. The copywriter reserves the right to charge 75% of the cost if the client doesn’t get to third or final draft in 30 days. (Essential to deal with time wasters and tyre kickers).
- 5e. The copywriter reserves the right to charge full whack if the job hasn’t reached third or final draft within 60 days. (Essential to deal with major time wasters).
- 5f. Any amendments made after the third or final draft, or after 60 days from delivery of first draft, will be charged extra. (See comments about time wasters, above).
- 6a. The copywriter’s payment terms – by return from date of invoice unless otherwise agreed. (No comment needed).
- 7a. No right to reject on the basis of style, composition, editing or interpretation of the client’s needs. (If you’re in doubt, use another copywriter).
- 7b. If the client abandons the project after the first draft and decides to finish it themselves or go elsewhere, then full payment is due. (Only fair. It’s a commission, not a request to complete speculative work).
As far as I can see, the potential client wants the copywriter to shoulder all the risk while reserving complete freedom to reject the work, stall and generally muck a professional around.
Perhaps you disagree?
Maybe so. But I know one thing for sure – I’m going to be revisiting our own T&Cs very soon.
I can’t think of a better way of weeding out people we don’t want to work with.
I have come to learn through the years, that clients who wish to impose there own terms, much like impossible terms of employment are generally not worth dealing with. 1-strike and you are out. Learn early, and make it last!
Comment left by Vincent Roman on Thursday 27th October, 2011 at 9:52 am
All I can say is, indeed! I had a client with very long payment terms (60 days end of month) that also had the very bad habit of not paying on time anyway. It’s worth remembering that you pay the VAT on an invoice quarterly. So you could end up advancing money for the client! After repeated reminders, I got a call from the creative department: could I help them as they had a small rush job, very urgent etc etc. I replied, “Certainly, my terms are that you pay 50% upfront via PayPal and I’ll get it to you tomorrow morning as promised”. I also explained why. The creative people couldn’t clear this with finance, of course. So that was the end of a very frustrating and unproductive relationship. No tears were shed, believe me. It’s a shame as the work was OK. But it was not worth the hassle.
Comment left by Michael Leahy on Thursday 27th October, 2011 at 10:19 am
That ‘client’ for want of a better word, is an arse. If ever I received correspondence like that from anyone I would kick them as far into touch as possible as it has the makings of no kind of business relationship whatsoever. Life is just too short for such petty minded officiousness and misery. I bet they eat breakfast by committee, do number twos on a rota basis and their children have to go in front of a panel before being considered for pocket money. At least I’d like to think so.
Comment left by Alconcalcia on Thursday 27th October, 2011 at 10:29 am
Ouch. We don’t like what you’ve done so here’s a £1. No way.
But to be honest, the client may have a point with the other items. I don’t know any client that pays on receipt of invoice. (6a) Most big businesses just don’t work that way. 30 days from invoice date is pretty standard. Likewise, I personally think that once the client has paid for the copy they can do what they like with it. (2a) As far as I’m concerned, once the final invoice has been paid in full the copy is no longer my Intellectual Property. Not every copywriter agrees with me I know. Some hold on to the IP and make a charge to transfer it to the client. But I don’t. As for 5d, 5e, 5f. I charge a deposit (Between 25% and 50%) at the beginning of the project and then charge for time spent to date at the end of the month if the job is dragging. That seems to do the trick.
It would be interesting to see the T&Cs of other copywriters. But as for the £1 thing – that would have me running for the hills!
Comment left by Sarah Turner on Thursday 27th October, 2011 at 10:37 am
Agree Sarah. I didn’t quote the T&Cs verbatim as I didn’t want to give away anyone’s identity.
But the full T&Cs do include a lot of flexibility to agree things. Surely the simple thing to do would be to drop a line asking to agree a few things in a friendly way? “Hi – we normally pay 30 days, would that be okay? You know how companies usually work.”
A spot of tact and diplomacy rather than a list of pettifogging and insensitive demands… hang on… The client could do with a copywriter!
Comment left by Ben Locker on Thursday 27th October, 2011 at 10:45 am
Wow. This post is so timely for me. As a matter of interest, do most copywriters out there get a lawyer to draw up their T&Cs?
I wonder if the client in question was just testing out several copywriters, hence the ‘inability’ to accept points 2a, 7a and 7b (which deal with ownership of the work and rejection fees).
Comment left by Sophie on Thursday 27th October, 2011 at 11:54 am
I think ‘By Return’ is a fine idea & suspect there’s a sound business reason: ie. if you need to recover the money legally & you know you’re not going to get paid coz you fell out or they’re an arsehole, you can send an LBA after two weeks rather than having to wait six weeks from the date of invoice!
On the question of copyright, I think retaining your copyright is vital. Some years ago I wrote a brochure for a big UK company and next thing I knew they’d used my words verbatim in a national TV ad & there was jack I could do about it! So they got a TV ad campaign for the price of a poxy brochure.
Plus, if you give your IP away you are signing over your copyright which is dangerous. Imagine: you write some words for Client A, then you use similar words for Client B who operates in the same sector. You give Client A your copyright. That means in theory, Client A can sue your arse off for nicking the words you wrote for them in the first place. Not, obviously, that anyone churns out the same words for each client – but there are always occasions when similar themes end up with similar turns of phrase.
Plus, if I write something, I sweat blood over it and am egotistical enough to think that it’s special, unique, beautiful and perfect, created just for them at that moment…and that means it’s mine forever…not theirs to mangle, give to their PR team to use in subsequent campaigns, add as a strap line to all their global subsidiary companies, give to their mates to use when they set up their own business or give to another copywriter who will then use it ad infinitum forever and get paid for my words. I do not charge to transfer my copyright because I never have transferred it & I never will. As a creative, it’s all I have. And remember…they only WANT the copyright because they know it’s valuable.
Comment left by Don't shoot the messenger on Thursday 27th October, 2011 at 12:34 pm
Vincent Roman wrote: “I have come to learn through the years, that clients who wish to impose there own terms…are generally not worth dealing with.” Sadly, that’s the conclusion I’ve come to, too.
I agree with Ben, all that was really needed was a quick and polite phone call to discuss the clauses concerned. I’m sure if the client was reasonable, then some compromise could have been reached. Clearly, this particular client wasn’t interested in compromising or negotiating or, for that matter, being professional.
Interesting comment from ‘Don’t shoot the messenger’ (DSTM) — I recently (well, a few years ago!) added a clause to cover copyright and usage. While the reason for doing so wasn’t quite as dramatic as DSTM’s, I was stung; the client had paid for brochure copy [funnily enough], but also used it verbatim for their website (more fool them, two different media, two different purposes) and also, I am told, in a few ads. So while I do transfer (at no charge) copyright upon full payment, my contract makes it clear that copyright and usage is only granted for the intended media/reason commissioned.
And yes, I would charge in full if a client rejected my work on the basis of style, composition, editing or interpretation of the client’s needs. Like DSTM says, my blood and sweat (and sometimes tears) has gone into that work, and it is only reasonable that I should be paid for my time.
Comment left by Tracey Dooley on Thursday 27th October, 2011 at 4:11 pm
Of course anything is negotiable and some people are more willing to give more than others, but I think it speaks of a person’s mindset or a company’s modus operandi when they behave in a certain manner.
I always review every last word of a contract, because ultimately, if you agree to it, they can stick it to you, from the terms of payment, to the day on which you can quit a job. Ever only been allowed to offer your resignation on Christmas day? True story!
From a creative perspective, if they don’t like your terms, they don’t have to work with you, but they are hiring you for a reason, and as much as it seems like a tall order to expect clients to pay for every last word on every last medium, think how many times you had to pay for the same albums by your same favourite artists on different mediums?
Anyhow it is hardly like copywriters are rolling in it … and Christmas ain’t going to come early if clients finally divvied up all at once =)
Comment left by Vincent Roman on Friday 28th October, 2011 at 12:04 am
Very interesting post. I too have had difficulties in the past with clients who don’t agree with the small print. A few years ago I had one who told me he didn’t like the style of copy I had provided & refused to pay…then used it anyway in all his promotional material. I’m interested to know if using a lawyer to draw up terms and conditions is the industry standard. I’m sure it won’t stop clients questioning the small print but could possibly prevent too many loopholes.
Comment left by Karen Stewart on Monday 31st October, 2011 at 1:57 pm
The contract is only as good as your ability to enforce it. So having a contract doesn’t protect you by default, it only provides the terms under which you are afforded protection should you you wish to use them.
I am in a position where it looks like I am going to be taken for a ride by a client, that turned into 2 clients, and whom are colluding against me.
At some point the object of the initial exercise becomes irrelevant and the money no longer important. I am just trying to figure out how to best respond, if at all … Needless to say, in the end it wont be pretty for them.
Comment left by Vincent Roman on Monday 31st October, 2011 at 4:49 pm