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Don’t Work Without a Contract

A rather ranty letter from me to past-Ryan Macklin:

Dear Past-Ryan,

You’re a fucking moron.

Thanks to your actions, I have four companies* that aren’t paying me for work we’ve done. I have a few thousand dollars in outstanding payments, emails to these people go into the ether, and I’m wasting a lot of spoons having to chase payments instead of, you know, be awesome.

And as much as I blame them, I also blame you. Let’s go through what was going on in your mind…

I’ll Get One Soon

HAHAHAHAHAHAHAHAHA!!!!!!!!

*snort*

Sure you will. Did you already start working?

Yes.

Bam! Lost your leverage on getting a contract, buddy! *sigh*

But They’ve Got A Tight Schedule

Oh, I’ve heard that before! (Since, you know, I’m you.)

So you’ve been pressured to start working before getting a contract because of their schedule? Do they have a contract ready for you? No? Then how the hell should you expect them to have other things they need ready for you in order to keep to that schedule?

You can’t. Being pressured to work without a contract is a company’s way of saying two things: one, don’t expect that schedule to be held, because it’s too unrealistic for them; two, they don’t respect you.

And if they don’t respect you enough to give you a contract prior to starting work, they don’t respect you enough to be paid.

I’m Doing This For The Exposure

If I could go back in time to do any one thing, it would be to punch you-me in the mouth for saying that.

You’re saying that you’re okay with being taken advantage of “for the exposure”? See if you still feel like that now? No, you don’t. Why?

Because people who don’t give contracts tend to be people who don’t run their business well. And those people don’t actually finish making products that you’ve worked on. So that thing you did in order to “get exposure”? Dead project. You worked many hours for piss all. You can’t get exposure if no one sees it.

I’m Afraid If I Ask, They’ll Can Me

Then you’re doing yourself a favor by asking. Work with no one who will treat you like you’re an asshole for asking for a very basic thing.

You’re Being Unfair

I am? Okay, yeah, maybe a bit. I’m pretty angry.

No one I’ve worked with intended on screwing me over. But the lack of contract is an indicator that I’m working with a company that will disregard me and fail at their job of being a business. There are several opportunities I passed up because I was busy on one gig or another that to this day hasn’t paid. And I continually feel both the sting of non-payment and the sting of opportunities passed by.

Sincerely,
The person who is dealing today with your naïveté

This is what it’s like to be a freelancer in this hobby, in software development, everywhere.

– Ryan

*To be fair, most of them aren’t in the RPG world. I’m also a freelance software developer. Still, with the situations I’ve dealt with in RPG-land, the lessons apply.

(Yes, this isn’t the post some of you were expecting. That post is in the works, and will be a much shinier, happier one.)

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31 Responses to Don’t Work Without a Contract

  1. Elizabeth says:

    Unfortunately, in my experience in the last decade as a freelancer, even contracts do not always guarantee payment, and the amount of money is almost never worth pursuing action.

    Sigh.

    • Ryan Macklin says:

      Elizabeth,

      Oh, yeah. I mean, a contract isn’t usually worth the paper it’s printed on in the hobby community. However, it’s generally a better indicator.

      Regardless, unless someone’s gained my trust through prior awesome (and to be fair, Fred Hicks totally has, I would fight fires in hell for him), I won’t work without a contract. The act of giving me that tells me that you _might_ be better than pure scum.

      – Ryan

    • Ryan Macklin says:

      I’ll also say: Being fucked even with a contract isn’t an argument against contracts.

      I’ll further say: *sigh* :(

      – Ryan

    • Fred Hicks says:

      Ryan, I really appreciate that. It’s helped a lot to be honest — sometimes with some of the projects we’re on, we don’t even know what it is we’re exactly asking for, which I imagine would complicate a contract’s implementation a fair bit. But I *should* get better about that, as a contract-offerer, all the same. (I’ve been good about doing that with artists, by and large. Not so much with wordsmiths and editors and PM folk.)

      Speaking as a freelancer — I’ve done a lot of work in the last few years off contract. It was pretty stupid of me. On that, I *am* getting better.

  2. Jim Ryan says:

    As someone who’s starting to freelance, I’ve got to say this is very helpful. I’ve already walked a few razors’ edges in terms of contract negotiation and this kind of thing helps people figure out which side to fall on. Thank you.

    • Ryan Macklin says:

      Jim,

      Thanks!

      I needed to write this because a friend of mine said that he was working without a contract because he wanted exposure, and I remembered when I thought that. I’m glad it’s helpful to you as well. :)

      – Ryan

  3. Sadly, I have to agree with the above poster who says that contracts do not guarantee payment.

    In my 5 years as a freelancer, the one RPG company I worked for who made a big deal about having a contract, well, I had to chase them for over a year and eventually threaten to go public to get paid.

    It was only a few hundred dollars – too little to sue for – but enough to be annoying.

    Unfortunately, this guy is still considered one of the ‘leaders’ in the RPG ebook market.

    However, I’ve come to view being screwed over by this guy as a sort of mixed blessing. It’s opened up so many networking opportunities as I’ve bonded with a wide assortment of people who had gotten similar treatment.
    I have met at least 10 other artists, writers (and one programmer) who were jerked around by this guy in the same way. It’s apparently his default MO.

    • Ryan Macklin says:

      Mike,

      Oh yeah, people will fuck you either way.

      It was only a few hundred dollars – too little to sue for – but enough to be annoying.

      Actually, if you have a clause where the other party has to pay your lawyer fees, it’s not too little.

      However, I’ve come to view being screwed over by this guy as a sort of mixed blessing.

      I have had the “benefit” you speak of. And I call that the Stockholm Syndrome that our creative community faces.

      – Ryan

  4. I negotiate (IT) contracts professionally. Working without a contract is a train wreck for both parties.

    Once you have a contract, enforce it. I think very, very poorly of folks who don’t honor a written agreement.

    Now, advanced lesson for freelancers: repeat as needed “Fuck you, pay me”

  5. JDCorley says:

    I don’t write a fucking postcard unless I have a contract.

  6. Unsurprisingly, I have a few things to say about this post.

    1) You probably do have a contract. Just because something is not in writing does not mean it is not a contract. You can have an oral contract, and they can often be equally as enforceable as a written contract. Similarly, just because the communications don’t have the “trappings” of a formal contract doesn’t mean it’s not a contract. A series of e-mails outlining the terms of the work can constitute a contract. This is not merely semantics. Generally, a formal contract is always preferable. If you’re point is about enforceability, the absence of a formal contract is not fatal.

    2) The primary function of a contract is to clearly outline the expectations of the parties. When should I get paid? When should I deliver the work? In what format? And so on. The benefit of a formal contract is to make it easy to see if all of the prospective issues have been covered so no one is left guessing or the parties need not tackle an unanticipated issue after it arises.

    3) Have your own contract. There seems to be an underlying assumption that the company should provide the contract. That is not the case. In fact, I highly recommend not just that freelancers have their own contract but also that they insist on using it. Often the freelancer will not have the luxury of using their contract over the company’s, particularly if it is a major, established company. Corollary: If the company does have a form contract they prefer, it is perfectly acceptable to negotiate for changes you think are important.

  7. An attorney who is a friend. I’ve actually done a couple of these for people you know. (And would be happy to do one for you.)

    Generally though, you could find a commercial attorney in your state and have them draft you a boilerplate. With a little leg work, I’m sure you could find one who would do it at a reasonable flat fee rate, e.g., a couple hundred bucks depending on what you are looking for.

  8. jenskot says:

    Thanks for sharing Ryan. I’ve done a lot of work as a freelancer and I’ve hired even more. Here’s my experience:

    Contracts aren’t great protection unless the payment in question is many times more than your legal fees, taxes, and hit to your reputation. But I still insist on a contract. Why?

    1. It prequalifies how serious and professional the client is. Best not get the job now than do 3 months of work and then find out the real situation. 

    2. It helps protect both you and the client from miscommunication. It sets expectations in terms of requirements, deliverables, and schedule. 

    The best way I’ve found to protect yourself is with phased payments. A 3rd up front, a 3rd near the end, and a 3rd when the project is delivered. If you don’t get paid, the project pauses.  Expect you may lose the last payment.  

    Best way to get that last payment is to agree to the next project with the same client before the current project ends. Or if you are needed for some sort of hourly support once the project ends. People often take the path of least resistance; what is more of a pain, honoring their promises and paying you or delaying the next project? Set up that situation. 

    In general I budget my finances with the assumption I won’t ever see that last payment or it will be so late I can’t count on it in a timely fashion. 

    Also, always call references. How have they treated past freelancers? 

  9. Fraser says:

    I don’t have any advice that hasn’t been provided, but I would like to elaborate on some stuff.

    Justin D. Jacobson wrote: “The primary function of a contract is to clearly outline the expectations of the parties.” Exactly. If nothing else, it works like a project charter, defining the milestones and deliverables. And like a charter, it can be used to manage expectations and as a way of identifying project drift.

    He also wrote: “Have your own contract.” Oh hells yeah. I’ve developed my own writer’s boilerplate, which includes things like: “Regardless of its place of execution, this letter of agreement shall be interpreted under the laws of the Province of Ontario” in order to save me the pain of travelling to suit some bastard. Should I ever get back into the freelancing in RPGs, I think I shall follow Ryan’s advice and get an appointment with a lawyer to add an “and you pay my fees” clause, as well as a clear penalty for missing the payment date.

  10. Julia says:

    I draw up contracts and send an invoice for 30% of my fee for work I do for my own mother. Sure she’s good for it, but it’s not just about the money. I outline my expectations for payment in a contract and outline my understanding of the client’s expectations. If a project changes scope or the client or I find the project needs more or less work than what the client and I agreed upon, we can renegotiate the contract and fee. Clarity and honesty go hand in hand in making clients happy and getting paid for one’s work.

    If I were to do work pro bono for a client I’d draw up a contract. One round of free work can easily turn into endless rounds of free work (or hurt feelings) all under the umbrella of one free project.

  11. Jonathan Walton says:

    It’s probably worth pointing out that there’s more going on in game design than freelancing; not everyone creates games as a business and volunteer collaborative projects can be really great and awesome, sometimes even when some parties are conducting commercial activities and some aren’t. Frex: I don’t need or expect to be paid for working on my peers’ games, as long as I love the project and enjoy the experience of working with them. This is a hobby for me, not a job. My life is busy enough without trying to freelance on top of everything else.

    But it is important in volunteer situations that you don’t become like the abused interns that they have in a lot of offices, where they essentially use you as a replacement for the people that should be paying. Really, part of why I don’t want to be paid for a number of indie projects is so people don’t have leverage over me to make me do stuff that I’m not interested in doing. Projects change, new things get added, things turn out to be different than you thought. And, for me, if I’m volunteering to help folks out, rather than it being “a job,” it’s a lot easier for me to walk away. I know that you can walk away from freelancing gigs too, but it can be more complicated sometimes.

  12. Tim Gray says:

    This is useful stuff, as I’ve just been putting together a freelancer contract for the first time. (It’s small-scale friendly stuff, so ‘short framework’ is my goal.)

    Maybe too detailed for this thread, but how do folks rate ‘signing’ them by exchanges of email with “I agree to these terms”?

  13. Monica says:

    When getting said contract, make sure it’s not from someone whose wife is an attorney… Because when the shan hits the fit, you have a) zero recourse and b) have to suck it up and smile…

  14. AJ says:

    Great post. I’ve read the comments and I’m shocked at some. I think it’s a defeatist attitude to say, “Contracts don’t guarantee payment so why should I demand one?” Contracts separate the pros from the neophytes, at least in appearance. A Contract is like insurance, you have it because it better than not having it.

    • I will agree that it’s better to have a contract. Particularly (as Ryan suggested above)with a clause where the other party has to pay your lawyer fees in case of legal action.

      But — contracts separate the pros from the neophytes?

      That’s an interesting attitude. Perhaps that has been true in your experience. I will say it doesn’t jibe with my personal experience freelancing specifically in the RPG field.

      Clearly, YMMV.

    • Ryan Macklin says:

      Mike,

      *shrug*

      What does separate them is when I ask about a contract and they dodge it. That is an indicator of someone not worth my damn time.

      – Ryan

    • Ryan

      – no argument there.

  15. mythago says:

    What they all said *points upthread*.

    However, a caution: if you do your own contract, run it by a lawyer in your state. Boilerplate/ready-made contracts are generic and they don’t (and can’t) neatly fit the laws of every state, or for that matter province.

    It’s pretty inexpensive to see a lawyer if you already have a contract in hand and just want them to review/notate on it. That will prevent you from later running into “Oh, sorry, that provision has no effect here”.