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October 19, 2006 10:45 PM   Subscribe

Will I win my small claims lawsuit against this deadbeat publisher?

I wrote a total of five feature articles for a new business magazine, which apparently went under before its launch. My contract said I would be paid 45 days after my final invoice (I believe that was May 2nd). 90% of my emails have been ignored, and I have never received a real explanation (although I'm pretty certain funding was withdrawn, something like that). The magazine never came out, and because it was a summer launch, the topics of the articles were timely and have now expired.

After weeks and weeks of being brushed aside, I send the publisher a version of this letter. Then he tried to put me on a guilt trip for threatening his "tiny little publishing company".

He's also said "We have not published your work or benefited from it in anyway and you have retained your IPR's to the fullest extent." Even if that were so, the summer's long over, and my articles are worthless. The letter I sent gave him ten days to pay or I would have to take legal action. Well, it's been two months. I've printed out the small claims documents and am ready to mail. The reason I hesitated: he sent me an email about three weeks ago claiming he put together a packet for all outstanding vendors, and I should receive it swiftly. Well, it never came. And what could it possibly say, anyway?

My questions for you: Will I win this case, even though it's true, he didn't benefit from my articles? The contract doesn't say payment upon publication--it says payment upon final invoice. Has anyone else had experience suing a deadbeat publisher/employer? I know that even if I win, I might not get paid for ages. But this is a lot of money to me (we're talking several thousand), and I also want to do win this on principle alone. He's been terrible to deal with. I have immaculate copies (hooray gmail!) of all our correspondence--though most of it during the happy writing days in April was through a middleman, the editor (also a bastard), who had severed himself from the company.

I hate this.
posted by changeling to Law & Government (10 answers total)
 
I think the hard part here is not winning in small claims, but enforcing the judgment. Sounds like the company has few assets, and could even be contemplating bankruptcy.

Small claims is sorta fun, though -- might as well get the judgment. And, who knows, you might get some of the money.

(IAAL, but IANYL)
posted by ClaudiaCenter at 10:50 PM on October 19, 2006


If the 'company' is an LLC with no assets that is going to go away, you might be SOL.
posted by SirStan at 10:50 PM on October 19, 2006


The only thing you have to lose is the small claims court fee. I would file. But then, I too have felt the sting of not getting paid by publishers. Good luck!
posted by dejah420 at 10:54 PM on October 19, 2006


What claudia said. You should win, but in the long run I'm not sure how much that might get you. (I too AAL, but not YL)
posted by kingjoeshmoe at 10:54 PM on October 19, 2006


File. If they come around then you can cancel the case. It's telling that they brought up the fact that they didn't "benefit" from your work after they agreed to pay you for the stories. Even though they're an LLC I can't imagine that they can legally run roughshod over your career with impunity.
posted by rhizome at 11:25 PM on October 19, 2006


Will I win this case, even though it's true, he didn't benefit from my articles?

That is not material. He agreed to pay you regardless of whether he benefitted.
posted by grouse at 12:46 AM on October 20, 2006


Did the contract specify a kill fee? If so, they may be able to argue that you are entitled to considerably less.
posted by desuetude at 7:57 AM on October 20, 2006


Frequently parties fail to appear for their small claims court date. If the publisher fails to appear you will likely win a defaul judgment against him. When the parties do appear the court often seems more like an arbitration and they try to get the parties to settle on some middle value. If this happens and the contract gives the copyright to the publisher regardless of publication, then you might consider trading these rights for less money if you think you can shop these articles around. Also, scrutinize your contract for any outs the publisher might have and be prepared to address them.
posted by caddis at 8:41 AM on October 20, 2006


File the claim. You didn't agree a royalty fee: you agreed a flat fee for the article, whether it was published or not. Would you accept it if he had published the article, but then refused to pay you because it didn't generate the ad revenue he expected? You wrote the article, delivered it and should be paid for it; the rest is his problem.

The only exception to his might be if he had said "hey, I'm planning a magazine; I need some articles for a dummy issue to raise funds. Could you do something for me on the proviso that I'll pay you if the magazine gets published?"

If the publisher didn't say this, or it wasn't spelt out in the contract (and I'm assuming there is a contract here, yes?), then you are absolutely in the right.

(As a freelance writer who has been burnt in the past, this is why I don't do work for people without a proper written agreement...)
posted by baggers at 10:55 AM on October 20, 2006


I just got back from Small Claims (yes, eight months later). He didn't show up, but I still had to argue the case. I won! Now I need to collect. . .. sigh.
posted by changeling at 3:27 PM on June 27, 2007


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