Pay it Again, Sam

It was film mogul, Sam Goldwyn, who said: “A verbal contract isn’t worth the paper it’s written on.” But, in a world where newspaper commissioning editors are increasingly trying to pay reduced (or ‘kill’) fees for work they have commissioned but are unable to use – for reasons outwith the control of the person who has been commissioned, such as a lack of space – a commission is a contract, and a contract is worth something.

In April, the National Union of Journalists’ annual conference will vote on a call by Edinburgh freelances for an information campaign aimed at tackling newspaper commissioning editors offering kill fees rather than full fees, for work that is of sufficient quality to be used, but can’t be.

It is hardly surprising that some pieces cannot be used, because of lack of space; after all, news and page changes are constant in a newspaper. That, though, does not justify the practice of paying kill fees.

It is actually breach of contract. For a commission is a contract and, with all due respect to Mr Goldwyn, a verbal contract is legally binding.

Kill fees are intended for the situation where someone has been commissioned but, before the commission is completed, it is cancelled. The kill fee is intended to compensate for the work already done.

The standard practice was that a kill fee would be 50 per cent of the original commission fee, not including expenses already incurred.

However, once the work is completed and delivered, then the contract is fulfilled and the full fee is payable. If the commissioning editor has commissioned too much material, or if the space situation has changed, that is a risk borne by the editor and his or her employer.

If the work has been completed but not yet delivered, it should be delivered immediately with a request for payment. If the work is not up to standard, or does not meet the terms of the commission, the journalist should be given the opportunity to put matters right.

The kernel of cock-eyed truth in Goldwyn’s aphorism is that verbal contracts can cause problems. What was agreed to? The angle, the interviewees, exclusivity, etc? A properly written contract would spell that out.

It does not need to be long, or very detailed. An exchange of e-mails could suffice. Freelances receiving verbal commissions are advised to confirm the commission with an e-mail.

The reason the abuse of kill fees is on the increase is, I believe, two-fold. First, there appear to be a growing number of commissioning editors who have not had this explained to them, either by their employers or through an industry body such as the NUJ.

Second, the pressure to cut budgets means editors who commission too much feel pressured to avoid paying for what they do not use. Where stories are cut in length, they will even try to avoid paying for the amount commissioned and offer, instead, to pay for the amount used. This too is breach of contract.

Many freelances will write ‘on spec’, hoping that a piece will be used once it is submitted. More experienced freelances tend to write only what they have been commissioned to write. If editors want access to these freelances they should know how to treat them.

Francis Shennan has lectured on Media Law at Napier, Strathclyde and Glasgow Caledonian Universities. He now runs courses for the industry, including Real Law for Journalists, Copyright and Commissioning, Media Law for PRs, Freelance Journalism, and customised courses for individual groups. More details from www.francisshennan.com or info@francisshennan.com