It pays freelancers to find wiggle room in exclusivity clauses

Given what’s happening in the media business, freelancers can’t afford to cultivate an exclusive relationship with one newspaper or magazine.

Actually, an exclusive relationship would be sweet – think of all those letters of introduction you’d avoid having to do and the time you’d save.

But unless you’re under contract at The New Yorker – and even that doesn’t work out so well for everybody - a single publication doesn’t have enough work to keep someone busy 100 percent of the time, leaving writers to cobble together a livelihood by taking assignments from any number of sources.

That can be a problem when publications have policies over what writing on similar topics freelancers they work with can or can’t do for competing publications.

Writers, of course, want the opportunity to pursue as many markets as possible: the bigger the pool, the more likely someone will bite.

Publications on the other hand, don’t want a freelancer they work with to do a killer story on a topic said writer usually covers for them for their arch rival.

Publications address this in different ways. Some put “category exclusivity” clauses in contracts barring a freelancer from writing anything else on the same topic for any of their major competitors for a specified period, often 60 or 90 days. Many category exclusivity contracts list the competitors, so everyone’s clear on who’s off limits. Here’s the exclusivity clause included in the contract Inc. uses:

Notwithstanding anything contained in this Agreement to the contrary, Author shall not permit the Work to be published in any other business, financial, or new economy magazine, including, without limitation, Fortune, Forbes, Business Week, Wired, Portfolio, or Harvard Business Review, or on any business, financial, or new economy Web site not owned in whole or in substantial part, or operated by or on behalf of, Publisher.

If a magazine or Website likes a writer enough, they may sign them to a contributing writer contract and pay them a retainer for filing a set number of words or stories per month. I’ve had such arrangements before, and if anybody wants to work out the same kind of deal with me again, please call. All joking aside, such arrangements commonly include a list of competing magazines the contributor agrees not to pitch while under contract.

Some magazines take a less formal approach, relying on a writer’s word that while they’re writing for the publication they aren’t going to simultaneously work on a story on the same topic for the publication’s biggest rival. I’m a contributing editor at one trade magazine and have discussed with the editor which magazines they view as direct competitors so I could avoid pitching anything to them. While I’m not bound by a contract, I value my relationship with this publication too much to do anything to mess with it, especially since they’re by far the best written, best edited, and best run, title in their industry.

Some magazine’s exclusivity clauses are pretty onerous, especially if you specialize on a certain topic. But just because it’s there doesn’t mean it’s set in stone. I’ve successfully negotiated very broad contract language regarding category exclusivity, changing it to specify a certain take on the story I’m doing for the publication, not on the topic in general.

I’ve also successfully negotiated changes to contract language that would have restricted my ability to blog about topics I also write about. One of the reasons I got into blogging in the first place was to get up to speed on topics I want to write about, so I’m not going to agree to limit what I can blog about for anybody.

You’d think that with things as bad as they are for magazines and newspapers, publishers would be less heavy-handed when it comes to category exclusivity clauses in contracts. Even they have to see freelancers can’t make it writing for one publication alone. Until they do, don’t be intimated by what’s on the printed page. You can negotiate better deals for yourself.