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Get Paid, Above All, Or Risk A Lot Of Pain


womensmagazineLinda Marsa was assigned a story by a major women’s magazine. At the editor’s request, Marsa wrote an outline, which was approved by the editor’s superiors. Marsa turned the story in on time, then did two rewrites. Six months passed and Marsa asked about payment. The editor said the story had to be approved by her superiors before she could pay Marsa, then offered a kill fee, which wasn’t part of the contract.

When Ardath Mayhar’s novel Battletech: The Sword and the Dagger was published, she received her advance on time. Several years passed and no royalties appeared, despite the contract she’d signed.

Leza Lowitz and her partner were hired to write a Japanese-to-English translation of a novel. They did it for less money up front than they usually received, with the agreement that if the novel found an English publisher, they would get royalties. They discovered that the author posted their translation on a Web site, even though Lowitz and her partner owned the English-language rights.

Even experienced writers like these get into situations where they complete the agreed-upon work, but don’t get paid. How can you avoid the same problems?

“Writers need to view this as a business and not be hesitant about asking for or requesting payment in writing,” says Debra Dixon, vice president of the Romance Writers of America (RWA).

But a contract in and of itself doesn’t guarantee you’ll be paid. Editors or publishers are all too capable of dodging phone calls, e-mails and snail mail letters–or responding with promises that the check’s in the mail. What do you do then? What did the writers at the beginning of this article do?

Linda Marsa used the Internet.

“I e-mailed the editor a message that I wanted to be paid in full-and set a deadline of a week.”

That deadline passed and Marsa sent another e-mail, but this time she carbon-copied the editor’s superiors. “I made it very clear that I intended to take legal action if I wasn’t paid in full immediately. After some balking, payment was finally put through.”

Ardath Mayhar was more creative. “I finally sent the accounting department a past due statement for several times the amount I estimated I should have been paid. A check [for the original amount] was sent out at once.”

Leza Lowitz’s partner wrote letters to the author demanding he pull their English translation off the Web site. He refused.

“I suggested we just drop [it],” Lowitz says. “But my partner contacted an influential literary agency in Japan, [which] negotiated with the author on our behalf. We received a substantial monetary settlement in addition to the translation fee.”

Those incidents ended happily, but they might not have if the writers hadn’t pressed the point. Here are some ways to protect yourself.

1. Keep copies of everything, from phone calls to e-mails, letters, faxes and contracts.

“This is very important because if the editor or publisher have any brains at all, they’ll realize you’re creating a paper trail in preparation for taking possible legal action,” Marsa says.

2. Insist on a contract or payment agreement–and make sure you understand it.

“Get it in writing; don’t rely on anyone’s verbal promise,” says Victoria Strauss, who created and maintains Writer Beware (www.sfwa.org/Beware), a page of warnings about literary scams located at the Science Fiction and Fantasy Writers of America (SFWA) Web site. “This applies even if the magazine is a non-paying venue.”

“Demand payment on acceptance, not publication, when dealing with small or unstable publishers,” says science fiction novelist Lawrence Watt-Evans. “Make sure every contract has a ‘[rights revert] if not published within two years’ clause.”

Before you sign a contract, know exactly what and when you will be paid for the work, what you must do to be compensated and what rights you are selling. If in doubt, ask a lawyer or agent for advice.

Don’t write on spec unless you get it in writing beforehand that if your writing is accepted, you’ll be paid a certain amount at a certain time.

If a publisher accepted the work, then wants to pay you a kill fee that wasn’t part of the contract, demand full payment.

3. If you don’t get paid, start with a phone call or e-mail, and keep the tone professional.

“Don’t discuss personal finances with the editor,” says the RWA’s Dixon. “Don’t make excuses for why you need the money. If the money is due, ask for it.

4. If phone calls and e-mails don’t work, send a demand letter.

“Always send any demand for payment by a traceable delivery service,” Dixon says. “Certified/return receipt has always been my preferred method. Demand letters should be brief, state the appropriate contract clause or oral agreement and request immediate payment.”

“If the publisher thinks you’re going to nag him, he may well pay you just to avoid confrontation,” says Barbara Mende, a grievance adviser for the National Writers Union (NWU). “I think that’s why so many publishers pay as soon as the grievant sends the demand letter, before the Union is even officially involved.” (For a sample demand letter, see page 40.)

5. If you still don’t receive payment, it’s time to go to your writers’ organization or union. Groups that work for writers in contract disputes include the Writers Guild of America (WGA), American Society of Journalists and Authors (ASJA), the NWU, SFWA and RWA. Don’t wait to join until you have a problem.

The NWU handles grievances against global publishing houses, newsletters, local and regional newspapers and magazines, as well as literary agents, subsidy presses, literary journals and work-for-hire companies. In an average year, the NWU handles about 100 grievances, of which 60-70% concern nonpayment/ slow payment issues.

SFWA’s Grievance Committee handles a wide variety of issues, including publishers who’ve withheld or mispaid royalties, questionable agent practices, copyright violations, and foreign rights sold without the authors’ knowledge.

Murray Teigh Bloom, chairman of the editor/writer relations committee of ASJA for the past 35 years, says during that time he’s helped an average of four to 11 members each year with nonpayment/slow payment problems. The committee’s success rate in collecting payments is between 90% and 95%, provided the publisher is still in business.

The WGA takes a member’s grievance all the way to arbitration and court, if needed. However, the group’s initial demand letter usually results in immediate payment.

Although the RWA can’t negotiate contracts or arbitrate disputes, the group does publicize in its newsletter and on its Web site industry practices it believes are injurious to authors. RWA hears of about ten payment complaints a year.

If the steps above fail to shake loose the money, you’ll have to decide whether it’s worth your time to pursue the matter in court. Even if you don’t, there’s still some chance of payment down the road.

“More than once, stories published by magazines who didn’t pay me were picked up by anthologies, sometimes years later,” Mayhar says. “I got paid then.”

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