They’re Trying to Stiff Me!

Most photographers just want a few simple things: 1.) To make beautiful images; 2.) pleasant clients; and 3.) to get paid a reasonable fee in a reasonable amount of time. Sounds easy, right? Sadly, human nature being what it is, we run into problems with numbers 2 and 3 more often than we like. So what can we do about it when it happens?

First, as with most business issues, investing a little time in preventing problems can yield huge dividends. Once you have a prospective client’s name do a little bit of quick research before even having a meeting, and definitely before accepting the job. Do a quick Internet search; see what other people have posted about it, particularly if a commercial entity is involved. Do a check with Dun & Bradstreet and the Better Business Bureau. Often, you can head off a bad deal by not getting involved with a bad client in the first place. Nobody ever went broke by saying no to bad deals.

Next, assuming you decide to take the job, get as much money up front as you can. If the assignment is going to take place over an extended period of time, bill in installments and be prepared to halt production if you don’t receive the required amounts on the agreed-upon schedule. Remember, once you have delivered the images, you probably have fairly limited leverage—if any—with which to compel payment.

That payment schedule and the consequences of failures to pay on time should appear in writing, and the key to any good business deal is good paperwork. Make sure that it covers all of the basics, particularly including when you are to get paid and what happens if you don’t. On the latter point, you will probably want to have terms and conditions (the “fine print” or boilerplate, usually on the back of the documents) that give you the right to decide where and how you can pursue collections. If you do not already have a good set of forms, do some Internet searching. There are many good sources, including American Society of Media Photographers at https://asmp.org/tutorials/business-forms-and-contracts.html.

Let’s say you have done everything you can to protect yourself ahead of time; you’ve used great paperwork, you’ve checked the client out, but you still find yourself with an unpaid bill after the job has been completed and the images have been delivered. What now? First, you have to make an honest, detached evaluation of the situation. That isn’t as easy as it sounds. They’re your photographs, they represent your hard work (not to mention talent), you did everything you were supposed to and you’re still not getting paid! It’s unfair and infuriating. You have to take a deep breath and ask yourself some hard questions.

First, how much money is involved? Remember, collecting bills is time-consuming and emotionally draining. Your time is valuable. If you end up going to court, you are probably going to have to pay a lawyer, plus filing fees and other costs, in addition to spending your time and energy. You need to accept that sometimes it makes economic sense to save yourself the time, hassle and expense and just walk away from an unpaid bill. Is that fair? Absolutely not. But it is a reality. You just need to view it as a cost of doing business.

Second, you need to ask yourself what kinds of defenses does the client have if you do end up in court trying to collect? Was the paperwork really clear and binding? Were the photographs really as good as you think they were? Is there room for doubt whether they met the requirements of the client and the contract? Did you deliver them as and when the contract required? What arguments might the client raise as a way of saying that he shouldn’t have to pay? Sometimes, it helps to sit down with a colleague and ask him or her to take a look at all of the facts, photos and documents to give an objective opinion as to the strength of your position. Put your feelings aside and listen to what your friend has to say. You are emotionally invested in this—he or she is not.

Let’s say you decide to move forward with efforts to collect. You have several options. You start with a collection agency. Depending on the amount of money at stake, you may also be able to go to the local municipal or small claims court. These are essentially “people’s courts,” and they are designed to handle claims for generally a few thousand dollars or less (the amount varies from locality to locality), and they are set up so that you don’t have to use a lawyer. One last-ditch alternative that I like is to fill out the small claims court complaint, but don’t file it yet. Instead, send a photocopy of the completed form to the client with a letter saying that, unless you are paid in full by XX date, you will be filing the complaint.

Finally, your last alternative, and in my view it is always the last alternative, is full blown litigation. Either for breach of contract or copyright infringement, depending on the details of the situation and the paperwork. I’m afraid that discussing real litigation is too complex of a subject to cover in an article of this length, so I am going to save that one for another column. In the meantime, be careful whom you accept as clients—you really don’t want to do every job that walks through the door.

Victor S. Perlman is General Counsel to the American Society of Media Pho­tographers, Inc. (ASMP). He has also served on the Boards of Directors of the Media Photographers Copyright Agency, Inc., the Copyright Clearance Center (CCC), and the Philadelphia Volunteer Lawyers for the Arts. Mr. Perlman has frequently appeared as an author in various publications, including Communication Arts and Popular Photography and is co-author of Licensing Photography, published by Allworth Press. He has testified in Congressional hearings and proceedings held by the U.S. Copyright Office and the U.S. Patent and Trademark Office.