In an ideal universe, the law is there to protect both parties in a contract equally. The freelancer and the client would both have guards to prevent the other from doing something unscrupulous or somehow taking advantage of the other.
Of course, in an ideal universe, justice would be free, it would be immediate and it would never make any mistakes.
Unfortunately though, we don’t live in a perfect world and, in many regards, that legal playing field is very much tilted against the freelancer. Not only do clients, typically, have more money but the global nature of the Web and, at times, the laws themselves only serve to make things worse.
On that note though, here are just some of the grim realities that our imperfect system has created and what they mean for you as you try to earn a living selling your writing.
1. You Can’t Practically Sue for Copyright Infringement
Suing for copyright infringement is a very tempting solution when someone rips your work off or a client skips out on paying you for your articles. However, if you’re in the U.S., you can pretty much forget about the idea.
Headlines about the ultra-high damages one might be able to get for copyright infringement drive some to think that being infringed is a one-way ticket to getting wealthy or, at the very least, a way to send a message to the infringer.
Unfortunately, if you live in the U.S. or the U.S. has jurisdiction over the matter, there are several very serious problems. The biggest is that you can only sue for works that have been registered with the U.S. Copyright Office and you can only claim statutory damages (the ones that offer up to $150,000 per infringement) in cases where the work was registered before the infringement took place or within three months of publication. Considering almost no freelance writing posts are registered, the most anyone would likely be able to sue for is actual damages, meaning the greater of what you lost or they gained.
In most cases, that’s almost nothing and it’s simply not enough to justify a lawsuit. Considering that a “cheap” copyright lawsuit will usually cost about $10,000 to get going it’s impossible to justify the expense considering the relatively small amount at stake.
Still, this doesn’t mean you’re helpless if you are infringed. You can file takedown notices to get works removed from the Web, send cease and desist letters and negotiate settlements. You just can’t rely on the courts to be your arbiter of justice.
2. International Clients/Users Are Almost Impossible to Target
The Internet is global and, as a result, we may find ourselves doing business with or otherwise working with people from other countries. While this can be great and it opens up new business opportunities, it can also be risky.
Legally, it’s almost always impractical to go after someone from another country, be they a bad client, a random copyright infringer or something else all together. The cost of dealing with someone who is in another country is simply too great as one has to find an attorney there to represent them, pay them, contend with a different legal system and then collect any damages.
By the time all of that is done, thousands of dollars can be spent pursuing something worth far less. Currently, there is no “International Copyright Law” or any other law for that matter. There is no global court you can go to.
This can sometimes work in the freelancer’s favor, especially an unscrupulous freelancer looking to scam clients while hiding out in a favorable legal climate. Still, it’s important to remember this limitation, especially when taking on clients form other countries.
The best thing you can do is research your clients beforehand, especially those far away from you, and if you are wronged by someone spread the word, being careful to only say things that you can back up with evidence.
It may not help you get what you are owed, but it might prevent others from falling into the same trap.
3. Contracts Almost Always Favor the Client
We talked previously about why you always need a contract and how they can protect you, but the grim truth is that clients, for the most part, write the contracts and they are written in their favor.
For example, most freelance writing contracts make the jurisdiction for any legal dispute in the client’s home turf. This raises your expense should you need to take legal action. Termination can also favor the client and payment terms often favor them as well.
However, possibly the worst area where contract favor the client is in the copyright license granted. Clients tend to prefer broad, exaggerated licenses that take more rights than they need and often prevent the writer from doing things that wouldn’t harm the client, such as posting samples on their site.
To counter this, you need to get contract smart and learn how to read your agreements. Then negotiate better terms if you can. If you must though, you can always go back later and get permission just bear in mind the client can always say “no”.
Is the current legal climate fair? No. But is it so unfair that it should dissuade you from becoming or working as a freelance writer? Absolutely not.
All that this means is that, as a freelancer, you need to be careful. Careful of who you work with, careful of the contracts you sign and careful of the work that you do.
While bad things may still happen to you if you are careful, and they probably will at some point, you will be much less vulnerable if you take reasonable precautions.
And that is really what this is about, not discouraging people from being freelancers, but to make them aware of the dangers and realities of doing so and teaching them how to mitigate those risks the best they can.
Have a question about the law and freelance writing? Either leave a comment below or contact me directly if you wish to keep the information private (However, please mention that it is a suggestion for Freelance Writing Jobs). This column will be determined largely by your suggestions and questions so let me know what you want to know about.
I am not an attorney and nothing in this article should be taken as legal advice.