If you’re anything like me, reading contracts ranks far down on your list of favorite things—somewhere between cleaning the kitty litter and gouging out your eyes with a grapefruit spoon. In fact, I once re-shingled my roof just to put off reading a book contract. Risking death in high winds was preferable to reading pages of sub rights clauses.

As self-employed creatives, contracts are one of the hair shirts we have to wear, whether we like it or not. In this business, no one can afford to sign contracts without reading them. As self-evident as that fact might seem, I have talked to more than a few artists who do just that. Many others read them, but sign them without fully understanding what they’re agreeing to. Sometimes they may not like the terms, but sign anyway, because they feel that they will seem 'difficult' if they question anything. Or they fear that they will risk losing the job or possible future work with the client.

I know there can be a strong inclination to just close your eyes and sign anything the client puts in front of you, especially in the current economic climate. When work is thin on the ground, few of us feel we can afford to be picky. However, there's an old expression that I've found to be true during many years of negotiating contracts and fees, and it still holds true today—it never hurts to ask. No client has ever slammed the phone down in a rage because I've dared to question their indemnity clause. It just never happens. They may answer 'no' to all your changes or requests, but the decision to take the job—or not—is always yours.

If negotiation isn't your strong suit, you are not alone. Many people, through upbringing or natural inclination, have developed some skill at this, but the rest of us have to learn it the hard way. I’m not a particularly quick study, but I've been doing this for so long that I've managed to pick up a few things.

First, IT NEVER HURTS TO ASK!!

I know I’m repeating myself, but this bears repeating. After years of saying 'yes' to whatever fee the client proposed, one day I …asked for more. I flinched while I waited for the response, but the client said okay without missing a beat. Now I routinely ask for more. Do I always get it? No—but I often do. The same applies to contracts. After I gave a talk at ICON5 on this topic, an art director approached me to thank me. She told me that her publishing company bosses required her to present creatives with a crummy all-rights contract. Only if illustrators or photographers balked could she give them a better contract. They had one all drawn up, but she wasn't allowed to bring it out unless the creative requested changes to the bad contract. This same thing has happened to me more times than I care to count.

It’s all in How You Ask

If you are polite and positive, it’s a lot easier to get what you want.

Sounds like a no-brainer, but I used to have a hard time with this. When I got a rotten contract from a client I took it very personally. I would feel outraged that the terms were bad, and would almost immediately get my back up when I talked to the client about it. I probably sounded like a sullen teen. I have heard that same outrage in the voices of other illustrators when they discuss bad contracts. My advice is to save that outrage for when you are swapping war stories with other illustrators or photographers. Leave it out of negotiations with clients.

A couple things to keep in mind: the art director didn’t write the contract, and he or she called you because they liked your work and wanted to work with you, dammit!

Imagine how you would feel if you really liked someone’s work so you called to give them a paying job, and then they showed their appreciation by giving you hell over some stupid contract that your boss makes you use. My guess is you wouldn’t be in a hurry to call that person again. What I’m trying to say is… have a little empathy. Here’s this person who likes your work! They want to pay you to do what you love! Don’t punish them for that.

The main approach I now use when negotiating is something I picked up from working with art directors. When I had sent in sketches on a job, and they needed a couple of little changes, there were those art directors who called and said they loved the sketches, everything looked great, there were a couple of little changes, and then everything could go ahead. Then there were those art directors who called and said there were problems with the sketches, and the direction was all wrong, etc. etc.
The first approach would keep me excited about moving forward on the job, the second would suck the life right out of me.

So now, when I need to ask for changes on a contract, I say that everything looks great, I’m excited about the job and really looking forward to working on it, and working with the art director. There are a couple of little things on the contract I’d like to change, but I’m loving this piece and can’t wait to get started. In other words, bad terms on a contract aren’t a ‘problem’; they are simply another part of this beautiful music that you and the art director are trying to create together.

Be Specific

When you ask for changes on the contract, don’t just say the contract sucks. Be polite, as brief as possible, and as specific as possible. You want to make this as quick, easy and pleasant for the client as you can. That way the client will walk away saying, "Man! I just love working with (your name here)!" and will call you with bigger and better jobs every chance they get.

I usually print out a copy of the contract, read it over and mark changes on it— very neatly. Then I get it to the client and make sure they are okay with the changes before I proceed.

95% of contracts are only a page or two long, so with a little practice, reading and marking it up should only take a few minutes.

Do Your Homework

Before you can be specific, you need to know a little about contracts.

In part one of this article, Contract Self Defense: White Belt, I talked about the main types of contracts, and what to look for in them. I figure I’ve looked at about a million contracts in my life (or at least it sure felt that way)—good and bad. Illustration contracts, writing contracts, book contracts, movie contracts, ad agency contracts, licensing contracts, postage stamp contracts, magazine contracts… you name it. I’ve learned a lot about what to look for and what to ask for. But I’m not a lawyer or an agent. My first article was a brief introduction, meant to demystify contracts for those who found the whole topic overwhelming. At the end of the article I listed some resource books. Buy one or two of those and acquaint yourself with some of the basics, and consult them for specifics when you have a client's contract in hand.

I have also learned a lot from talking to other people in my field— illustrators, writers, photographers, and agents. Call someone you know and ask them what they do when they get a contract with this or that clause.

And keep your contracts! File them by year, and you will always be able to lay your hand on them when you need to. They can be a great way to see what terms you’ve been able to negotiate before.

Be Willing To Bend

Remember – even Brad Pitt doesn’t always get everything he asks for in a contract.

Nothing against lawyers, but some of the ones I’ve talked to about contracts have this take-no-prisoners approach. That’s a great person to have on your side if you are dealing with a huge corporate client who really REALLY wants your services, badly. But most of the time I’m dealing with art directors, many of whom I’ve worked with for years. It’s an easy thing for a lawyer to say that you must always make the client sign your contract, but in the real world that just doesn’t happen too often. You should have your own studio contract, and use it when you can (again, it never hurts to ask), but don’t expect to get it signed on every job. And don’t expect to get an automatic ‘yes’ to every change you ask for on their contract either. In my experience, most changes are accepted without comment, but there are clients who just can’t change certain things on their contract. For whatever reason, they feel they really need that particular right or term. Instead of getting into a death match over those clauses in the contract, use a little jiu-jitsu redirection, and make it about the fee instead.

For instance, I might be doing an illustration for a magazine, and their contract will ask for additional usage rights, the ability to include the illustration in a compilation, or the rights to license it to other outside entities. If the client can’t or won’t change those terms, then I say I’d be happy to grant them those extra rights if the extra usage is reflected in the fee. Again, be polite and positive, but be sure to let them know that they are asking for more, so you expect to be paid more.

When you’re negotiating, you have to expect that sometimes there will be a little give and take. You might not get every single change you ask for. The client might get extra usage rights from you, but they may have to pay you a little more for them. In the words of Anonymous – it’s a successful negotiation when both parties end up feeling slightly screwed.

Be Willing To Walk

Every once in awhile, there will come a time when the client won’t budge on something, and you have to ask yourself if you’re willing to walk away. If the client is asking for a lot of extra work, has a low fee, is insisting on you signing a work-for-hire contract, and won’t budge on any of that, then you should definitely walk... unless your power is about to be cut off because you haven’t been able to pay the bill.

If you are willing to walk away from a job, you have a much stronger bargaining position so you should always project that vibe. But let’s face it, when the bailiff is pounding on the door of your shack, how choosy can you afford to be?

When I’ve felt lucky or flush I’ve walked away from big jobs because the fees or contracts were bad. But I’ve also taken crappy jobs when I needed the dough. I know from experience that it still beats washing dishes for a living, though not by much.