What to do about a publisher not paying?

[Bardsandsages]

I haven't decided. That does make it easy for people to slur others with a vendetta; if it's limited to only actual working relationships created within the system, at least we know they're all genuine. But, like I say, I haven't decided yet.

Well, perhaps it could be linked somehow to the freelancer's credentials? For example, if someone posts they did artwork for The Complete Guide to Prostitution*, the publisher (who would have to be registered) would be able to post a rating based on that product.

*And no, we are not currently working on such a title.

 

[Steve Conan Trustrum]

You have to remember, if you are very loud and public about disagreements with a publisher, no matter how well deserved, there is a good chance other publishers might not want to work with you.

True, but I've had some rather public, messy, infamous issues with certain publishers and I still got work without any problems. I'm of the school where I believe people need to reap what they sow in order to learn a lesson, especially if keeping quiet can cause other people to get burned. It's part of the reason why I started up Misfit Studios and it defines how I treat my own freelancers.

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Although it probably didn't hurt that the company I had major issues with already had a rep for being cheats and asses

 

[Steve Conan Trustrum]

Sure, you could make that claim in court, and I imagine the contract would definitely have to be presented there. But I still say posting any excerpt from a confidential contract would be a bad idea.

As I understand it, only if you have an entirely separate confidentiality agreement that has nothing to do with the terms of your work contract. If a publisher doesn't follow through on a contract by not paying, then the contract's terms haven't been met and the publisher is in breech. As it was explained to me, you can't hold someone to confidentiality terms included as part of a contract that's been nullified by non-compliance because the non-compliance voids the confidentiality along with the other terms.

If not it's essentially one of the signed parties saying "well, YOU have to stick to what the contract says but we don't so don't tell anyone we're not paying you or we'll take you to court with the contract we broke with you."

 

[Morrus]

As I understand it, only if you have an entirely separate confidentiality agreement that has nothing to do with the terms of your work contract. If a publisher doesn't follow through on a contract by not paying, then the contract's terms haven't been met and the publisher is in breech. As it was explained to me, you can't hold someone to confidentiality terms included as part of a contract that's been nullified by non-compliance because the non-compliance voids the confidentiality along with the other terms.

If not it's essentially one of the signed parties saying "well, YOU have to stick to what the contract says but we don't so don't tell anyone we're not paying you or we'll take you to court with the contract we broke with you."

Most contracts will have provision for partial breach, and what happens to other clauses.

That withstanding, no contractual clause overrides a contract's status as evidence in a court of law. Contract is overrided by statute at all times.

 

[PatrickLawinger]

True, but I've had some rather public, messy, infamous issues with certain publishers and I still got work without any problems. I'm of the school where I believe people need to reap what they sow in order to learn a lesson, especially if keeping quiet can cause other people to get burned. It's part of the reason why I started up Misfit Studios and it defines how I treat my own freelancers.

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Although it probably didn't hurt that the company I had major issues with already had a rep for being cheats and asses

Hehe, well, I did mention getting a lawyer to help me kill a new company someone was trying to form. He never charged me as he considered it part of trying to collect for me. I think the fact that the person in question sent the lawyer a threatening email might have helped. If the lawyer hadn't managed to kill it, I would have gone very public as this guy would simply have screwed more people.

Patrick

 

[Mark Plemmons]

As I understand it, only if you have an entirely separate confidentiality agreement that has nothing to do with the terms of your work contract. If a publisher doesn't follow through on a contract by not paying, then the contract's terms haven't been met and the publisher is in breech. As it was explained to me, you can't hold someone to confidentiality terms included as part of a contract that's been nullified by non-compliance because the non-compliance voids the confidentiality along with the other terms.

If not it's essentially one of the signed parties saying "well, YOU have to stick to what the contract says but we don't so don't tell anyone we're not paying you or we'll take you to court with the contract we broke with you."

Yes, but that's not what I'm saying.

I just think that posting all or large chunks of a confidential contract, for everyone to see, could be a bad idea. That's different than spreading the word that a company didn't pay. It's posting information that could be confidential, depending on the contract language. Of course, I don't know the original poster's signed contract, so it may not say anything like "this contract is confidential info and may not be shared, etc etc."

Of course, I'm just speculating, since I'm not involved and am not a lawyer.

 

[Mark CMG]

Have to say, Mark, only in the RPG biz would be getting paid what you're actually owed be considered a good result!

Having to chase down the payment might be a bad aspect but getting paid for your work is always a good result.

 

[eyebeams]

If you do not get to good faith payment arrangements in a reasonable amount of times, name names. Unethical publishers rely on freelance desperation and charity.

Do *not* do this if the publisher is making reasonable effort to keep in touch and resolve the situation, without using transparent delaying tactics. Publishers sometimes make mistakes without any bad intent at all. You should have exhausted other avenues. In many cases, a lawyer isn't worth it, as the problem publisher may know that it doesn't make financial sense for you to follow up on your strongly worded letter.

In essence, when you have reaches the point where you would never work with this outfit again and want what's due to you, it's time to let everyone know how this publisher does business. But do not make suppositions about motives or actions that you are not privy to. Simply document what you are owed and what has transpired.

Thanks in part to this policy, I have *never* been stiffed. People have delayed -- sometimes for quite some time -- but I have *always* collected my debts.

If you're afraid of publishers not hiring you because you'll publicly note truly egregious examples of nonpayment, ask yourself whether or not you want to work with *them.* Remember, we're not talking about having a tantrum the moment a cheque is late. We're talking about going public after chronic delays, refusals and lack of communication, for which private channels are ineffective. If a publisher is afraid of being caught by *that* . . . well, the less said, the better.

A strict policy of privacy no matter what does a disservice to everyone:

* It does a disservice to other freelancers, who should be better informed about who pays.

* It does a disservice to honest publishers, who should be seen in contrast to people who don't pay promptly.

* It does a disservice to the consumer, who should be able to consider publisher practices as part of his or her purchasing decision.

Here are the right and wrong ways to go about it (drawn from actual situations):

RIGHT: The publisher releases a product without notifying or paying the freelancer. When the freelancer contacts the publisher, the publisher says that he has to "check with accounting." Then the accountant is "away." *Then* the publisher doesn't answer repeated emails over an extended period of time. The freelancer warns the publisher that if there is no attempt to resolve the issue soon, he'll make his grievance public. The publisher does not respond. The freelancer posts about the issue.

Result: The publisher responds, frankly admits that he's light on cash and they negotiate a realistic settlement.

WRONG: The publisher misses a payment date. The freelancer contacts the publisher, who apologizes and arranges to pay a month from that date (corresponding with RPGNow payouts, which both parties are well aware of). The freelancer complains about this on a messageboard.

Result: The freelancer gets the payment that was coming anyway, and I kick this person off my hiring list. This individual did not get $1000.00 from me despite being the lead candidate.

 

[Samurai]

I have sent the publisher a strongly worded email stating that this was my final attempt to contact them and try to get payment, and if no response is forthcoming (like my last 3 emails), then I would do my utmost to spread the word to both fellow freelancers and people considering buying their products just how they treat the artists who work for them. I also said I felt 10 months of waiting for payment (and emails after emails after emails) was very patient on my part, but that my patience had reached the end. We'll see if I get any reply...

 

[Mark CMG]

I have sent the publisher a strongly worded email stating that this was my final attempt to contact them and try to get payment, and if no response is forthcoming (like my last 3 emails), then I would do my utmost to spread the word to both fellow freelancers and people considering buying their products just how they treat the artists who work for them. I also said I felt 10 months of waiting for payment (and emails after emails after emails) was very patient on my part, but that my patience had reached the end. We'll see if I get any reply...

I think that may not have been a wise move. While it might get you some results in regard to the money, it risks damaging your own reputation and ability to gain work in the future. Sure, there are some companies you'd just as soon be better off not working with and you might or might not gain work with them down the road. But there are also good companies who would likely not hire someone who takes such measures, as well.

Despite the fact that your approach might seem like the best because it makes you feel better in the immediate future, there are other considerations. I am not saying that in this situation you are wrong to feel that the company in question is not dealing with you fairly. I am saying that some companies might not feel comfortable risking their reputation on whether or not you might be wrong in the future, should some series of circumstances build up and create a seemingly similar situation. A small company can sustain a great deal of damage from such action and while it might be deserved in this case and others, there are situations where it would not be deserved.

Also, it is also possible that dealing with this properly through legal channels preserves the company's ability to actually pay you while damaging them might actually make it impossible. Further, if making a public display damages a company wrongly, you might find that you have crossed a line and be personally subject to legal action.

All that said, I think the best advice posted in this thread is from -

As it happens, I am a collection attorney in my "day" job. Most collection attorneys will work on a contingency fee basis, which means they only take a percentage of what they actually collect for you. (The fee can vary from, say, 20-40%.) I have helped a few other artists get paid; often a sternly worded letter on attorney letterhead is enough to do the trick. If your company happens to be based in Florida, feel free to contact me. Otherwise, my suggestion is to locate a local collection attorney and contact them. They won't charge for talking to you. (FYI, they are sometimes also referred to as "creditor's rights" attorneys.)