If you do enough freelancing, it will happen soon enough. Someone is not going to pay you.
Whether you do writing, design or doing any other freelance work on the Web, eventually you will get a deadbeat client and it is best to be prepared for that eventuality than to stress over it when it happens.
Though there are many steps you can and should take to mitigate the effect of and reduce the number of such incidents, an article for another day, today we’re going to focus on your rights when you’ve done the work and the other person refuses to pay.
How it Begins
Most experienced freelancers have a gut feeling about a client long before he’s confirmed to be a deadbeat. Whether it’s a rush order or something unusual going on with the client, a client failing to pay is rarely a surprise.
However, those feelings are only confirmed after the invoice is sent. A once-communicative client goes silent, stops answering calls and doesn’t respond to emails. Though they are happy to use the work, the money that is now owed is never sent.
Once the deadline has passed and it’s clear that the client has no intention on paying, it’s time to kick things into action.
Though not every client may be worth the full response (if you’re owed a very small amount it may be wiser to just ignore it) here are the steps you can take to get what is owed or at least reclaim your work.
1. Be Persistent
Don’t stop sending the invoices. Keep sending them and using every available means, email, fax and postal mail (using certified mail if at all possible). Sometimes a “deadbeat” client is just one who has had a temporary lapse and, by staying on the ball, you can be first in line for when they return to normal.
More importantly though, it establishes a chain that shows you made a reasonable effort to notify your client of what was owed and collect those funds. The better the chain, stronger of a case you have down the road.
2. Escalate, Carefully
When invoices stop working and the past due stamps aren’t getting the job done, it’s time to escalate. How long you wait will depend on your contract and the terms set under it, but generally there comes a time to stop sending invoices and start sending cease and desist letters.
Once again, send them by any means available with a heavy emphasis on certified mail if possible. If you can show that you are serious with these letters, you’ll have a better chance of success.
On this note, you can draft your own letter or use a stock letter from my site as a starting point. The main thing is that the letter should be professional but stern.
At this point, it’s time to stop treating it as a client issue and start looking at it as a copyright issue.
3. File a Takedown Notice
As mentioned above, at this point the matter is not so much a client/freelancer matter as a regular copyright one. Whether you have a contract or not and regardless of the rights or license you aimed to give them in the work, the contract does not execute until you receive payment. Therefore, they have no right to use the content without paying and you still have copyright in it.
If sending invoices and cease and desist letters don’t work, it’s time to take action. You can file a takedown notice with the site hosting the content. If it is located within the U.S., EU or any other nation that has a notice and takedown system, you should be able to get the work removed.
If you can’t get the work removed directly, you can get it removed from the search engines as all four of the major search engines accept DMCA notices.
For more information, see my Stopping Internet Plagiarism section, specifically parts 3-5.
4. Consider a Lawsuit
If the takedown notice isn’t able to work or they simply keep putting the work back, you may need to look at filing a lawsuit. Unfortunately, that will likely be impossible in most cases.
The problem is this, if you are a U.S. resident filing a lawsuit for a work you haven’t registered with the U.S. Copyright Office is nearly impossible. It is impractical financially as there are no statutory damages available (meaning no attorney is going to take the case), forcing you to sue solely for the greater of what they lost or you gained (better known as actual damages).
However, if you have a written contract with the client and the client guarantees you reasonable attorney’s fees in the event of non-payment, it may be practical to file a suit, if nothing else than to make a point.
Still, that would be something to discuss with your attorney as it would need to be decided on a case-by-case basis.
5. Tell Others
Though I am loathe to recommend mob justice, this is rare exception to the rule. Telling other freelances that a client doesn’t pay will help protect them should they get offers from the client and will help reduce the pool of victims for the deadbeat should they continue to try and scam others.
Often times deadbeat clients only pay up when they feel the heat from a public disclosure but be careful not to let the mob get out of hand or to get into a public shouting match with the person involved. That can do more to harm your reputation than that of deadbeat.
Be careful with this method and use it sparingly, but don’t forget that it can be a powerful and important tool.
Bottom Line
It’s important to remember that, whether you have a written contract or not, the terms of the license don’t take effect until payment is made so you have ownership of your work and the right to block their use of it until they complete their half of the bargain.
Though you shouldn’t treat a client like a regular plagiarist, realizing that you have the copyright in your work and they don’t have a license to use it gives you a great deal of power. It’s just a matter of finding the correct way to flex that power.
The good news is that, if you’re careful but firm you can probably resolve a good majority of your deadbeat cases without resorting to drastic measures and while getting your money. Best of all, if you earn a reputation as someone who stands up to deadbeats, you’ll probably find that you have fewer such cases to deal with, making your freelance operation run much, much more smoothly.
Your Questions
Have a question about the law and freelance writing? Either leave a comment below or contact me directly if you wish to keep the information private. This column will be determined largely by your suggestions and questions so let me know what you want to know about.
Disclosure
I am not an attorney and nothing in this article should be taken as legal advice.
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