Issue 231,  published October 22, 2019

Risk

The Wild West is an oft-used metaphor in discussions about the podcast ecosystem, both as descriptor (“there are no rules out here”) and excuse (“there are no rules for me to follow”). Personally, I don’t have much love for the metaphor, given its overuse by those who wish to sound like they know a damn thing, but that doesn’t take anything away from the relative accuracy of the image. Indeed, for the longest time, standards for conduct in this previously underdeveloped corner of the media universe were emergent, and podcast folk have both profited off and suffered from this nascent state of conditions.

The thing about the Wild West, though, is that it eventually gives way to industrialization, which ultimately results in chaos that can manifest itself in a number of ways. (*watches Deadwood once*). One such way revolves around contracts and commissions, or the formal process by which podcast producers — typically working freelance, independently, and/or generally solo — get work from those with the money, an increasing portion of which are rooted in other industry contexts. As podcasting continues to attract greater participation from these external opportunity providers, it has begun to see the application of conduct standards derived from other media contexts that aren’t always suitable for podcasting. This results in a less-an-ideal environment for audio producers, who as a creative class have yet to properly organize.

Over the past year or so, I’ve heard from an increasing number of creative audio workers who feel considerable anxiety over some of the contracts they’ve been receiving. In many cases, they believe these contracts to be inappropriate at best or excessively aggressive at worst. And for several weeks now, I’ve been trying to build a column around the ways that producers should see, understand, and operate within this new context. Understandably, though, there was a blanket reluctance among the producers I spoke with to go on-the-record about their experiences, thoughts, and proposed solutions, in large part due to active negotiations and fear of cutting off future opportunities.

But I remained compelled to build a column around this thread, at the very least to paint a picture of what I’ve been hearing. So I decided to move a layer up, and reach out to two operators who actively work with producers but aren’t exposed to the same risks themselves. The first is Elise Bergerson, an independent consultant who helps podcast clients work through each stage of operations and production development. (Previously, Bergerson was the Business Operations Manager at This American Life and Serial Productions.) And the second is Amanda Hickman, the recently-appointed director of AIR’s Freelance Futures Initiative. I communicated with both separately, but their insights almost entirely overlap, so I’m going to weave them together for the rest of this piece.

The first point of context that I was told — aside from the fact that neither Bergerson and Hickman are lawyers nor should they be a substitute for lawyers, and that all producers should consider consulting with a lawyer when dealing with contract situations — was that bad contracts aren’t the norm. “The vast majority of outlets hiring freelance producers have perfectly reasonable standard contracts,” said Hickman. “But that doesn’t mean there isn’t a problem with outlets pushing pretty outrageous contracts.”

In the instances where there are difficult contracts, they tend to come from specific kinds of partners. “This may not come as a surprise, but I probably see the highest incidence of bad deals when creators are working with brands and work-for-hire partners who come from other industries, and thus aren’t cognizant of the all-in costs,” said Bergerson. These situations, she argues, come from a thinking where the commissioning outlet’s focus is on producing goods at the bare minimum cost, as opposed to paying fair market rates to proportionally compensate labor, expertise, and talent. (Often times, the contract standards set by these outlets are shaped by their respective industries’ own legacies of exploitative practices.)

These conditions are exacerbated by two factors. The first is a lack of collective organization among podcast producers as a creative class to cultivate and enforce standards around rates. The second is a little weirder: the existence of alternative online services that further undervalue perceived worth of labor. To this point, Bergerson referred to a recent tweet by the producer Stephanie Foo, which contained a screenshot from Fiverr in which audio freelancers were charging prices as low as $5 for editing and mastering whole episodes.

So, what defines the quality of a contract? It comes down to how the risk and reward is being distributed between the producer and the outlet. Broadly speaking, producers can start by breaking contracts down in terms of how control is distributed along three things. The first is production-oriented, hitting topics like: Is the provided budget sufficient to actually cover everything? How is the client being held to paying on time? Is there any transparency over the client’s marketing and ad sales strategy? The second is editorial-oriented: Who gets the final say in the end-product? How will the producer’s name be associated with the production? Will they have the option to disavow?

The final consideration — which some say is the most important, and in my experience, it’s the one most people want to talk about — revolves around intellectual property: who has control over the IP, derivative rights, licensing, raw material (underlying tape, etc.), decisions over follow-up seasons (can the producer shop it elsewhere?), and crucially, the podcast feed itself.

It should be noted that these are just the basic topic area considerations. There are an assortment of other specific technical contract points that producers should be watchful in grappling with. Hickman highlighted blanket indemnities (a clause transferring legal risk onto the producer) along with inappropriate work for hire assertions, which pertains to a specific type of work arrangement, as big red flags when it comes to contracts. Meanwhile, and this is just me speaking personally: kill fees and late fees are important.

When it comes to the broader desired outcomes of these contracts and arrangements, the fundamental question is whether producers are being adequately compensated and supported for the work they are producing. It’s a balance, and an ideal market context is one in which both sides are able to proportionally work out distribution of downside versus upside. If a producer is being made to give up rights to produce derivative works, then they should get paid more, and the other way round. (The apocalyptic situation is one where the producer both doesn’t get to hold onto their ownership rights, and they get paid like crap.)

Of course, it’s a rough world out there for freelance and independent workers. The overarching structural distribution of power is such that the client tends to almost always hold the bulk of the leverage in any negotiation. It can be incredibly difficult, on an explicit and implicit level, to hold your ground when engaged in a bidding situation for a client that may be under-informed when it comes to the reality of production costs-versus-intended outcomes… particularly when you really, really need the money.

Everybody has to play the hand they have, that much I believe, but folks shouldn’t lose sight of what’s right. “Telling good stories is hard work,” said Hickman. “And if you’re doing that hard work, you should be able to not just pay the rent, but also take vacations and put some money aside for retirement.”

At the end of the day, the harsh reality is that it is, in large part, up to independent workers to look out for themselves. This means being vigilant about digging deep through offered contracts, finding help in becoming more familiar with the strategic contours of a negotiation, and being prepared for tough conversations. “It’s uncomfortable to kick off a project when the process leading up to a deal has been contentious,” said Bergerson. “I think this discomfort can lead to a lot of wishful thinking or grin-and-bear-it conversations. But creators need to think about scenarios in which everything goes wrong.”

To cap off the discussion, Bergerson added one more thing: “Let’s get some better organization together across the industry so that it’s not a race to the bottom!”

Two more things before we move on:

(1) To reiterate: if you’re a freelance or independent worker, do seek counsel when going through these negotiations and contract processes. Situations will be different for everybody, but it’s always worth having someone on your side.

(2) One story that I’ve been tracking that’s deeply relevant to this column: the impact of California Assembly Bill 5 on freelance creative workers. Need more time to dig into this, but in the meantime, The Hollywood Reporter has an informative piece on the matter, and I recommend going through this Twitter thread, along with this one.