The advice below is offered by ProAction, however ProAction can take no responsibility for any actions as a result of following the advice.
Retrospectively offered contracts what you should do
- A retrospectively offered contract is any contract offered to you by a client after a (different) contract was previously agreed between you and the client. Contracts with clients are often agreed via a combination of the written word (via email and/or fax) and by voice. Please note that purely verbal contracts are generally recognised in UK law as binding but there can be problems in proving what the terms of the contract are, as the clients recollection may differ from yours. For this reason, we strongly recommend that whenever possible you agree a written contract with the client in advance of starting work.
- Retrospectively issued contracts from clients usually contain new and additional terms that are worse for illustrators than the terms of the contract they agreed before start of work. Such terms all too frequently include previously unspecified and /or un-agreed additional items such as additional usage rights for the client, a waiver of Moral Rights and poorer terms regarding cancellation / non-use /rejection of work.
- If youve started illustration work to a written and / or verbal pre-agreed contract then unless you have verbally pre-agreed an assignment of your rights (which the law says should be in writing) there is no need, in UK law, for you to subsequently agree any new or additional terms in any retrospectively offered contract from any client.
- Its best to respond in an as matter of fact a way as possible to any client who has presented a retrospective contract which you are unhappy about. Something perhaps along the lines of the below:
- Unfortunately the new contract offer contains new and /or additional commercial content which is not in my commercial interests and which was not part of the contract I originally agreed before start of work. I must therefore reject the new contract offer which has been made.
- Once the client has been informed of your position, they may request that you explain what it is about the retrospective contract that you are unhappy about. Once the client has received this (best to supply it to the client in writing via email) the client may offer better terms in at least some areas. At this point applying for an increased remuneration amount (fee) as a trade off for allowing the client to retain some of the commercial content they seek, becomes a viable negotiation position (and frequently a successful one).
- Keep your communications with the client calm, matter of fact and courteous (remember that the law is on your side and that frequently the executive at the company with whom you are dealing is obliged by their company to work in the way they have).
- Above all else remember that if a contract (however minimal in detail) was pre-agreed between you and the commissioner before start of work, then only that original contract is legally sustainable. No other contract can be substituted without your express permission / agreement. Any late payment or non-payment by a client on the grounds that they need you to sign the new retrospective contract is also legally unsustainable, provided that you have invoiced faithfully to the original contract. (In England, the Small Claims system in the County Court offers recourse for illustrators with claims up to £5,000 in the event of any late or non-payment by clients in the above circumstances).
Pro-Action recommends that you always present your standard Terms & Conditions of Business to any client seeking your services. These T&Cs should include interest charges to late paying clients, and should be presented to all clients once negotiations have been concluded and before you start work. The T&Cs should include/be accompanied by details of the usage rights agreed and the remuneration (fee) agreed. The AOI have a recommended set of T&Cs for illustrators which can accessed from the AOI website Members section.
AOI also publish The Illustrators Guide to Law and Business Practice by Simon Stern which contains a general guide to Contracting Practice, available at www.theaoi.com
AOP publish Beyond the Lens, a guide to rights, ethics and business practice in professional photography, available from beyond-the-lens.the-aop.org
Two final points:
1. It almost invariably pays to negotiate with clients to secure improved fee remuneration and other contract items.
2. Watch out for content in any client Purchase Order you may receive after youve negotiated a contract or completed a job the small print on many (if not most) client Purchase Orders frequently expressly contradicts key contract content pre-agreed by illustrators and, unfortunately, if such content on Purchase Orders is not expressly rejected shortly after receiving, the Purchase Order then acquires much weight in law (particularly if the Purchase Order number is later detailed by an illustrator on their invoice).