"Top 10 Lies told to Designers" (for the freelancers out there)

[Andy Kitkowski]

I saw this from a post at www.lifehacker.com , and while it's simple and we've seen or heard of most of them, there may be a couple that you can look out for.

It's probably most applicable to web designers, artists and writers.

http://www.paintercreativity.com/articles/top-10-lies.html

[Ron Edwards]

Hi there,

That's generally good stuff! I agree with nearly all of them without reservation.

I think #3, #6, and #9 might need massaging, at least in my experience with freelancers (artists, layout) in independent RPG publishing. I offer these thoughts on those points based on my Adept Press experience.

3 "Do this for us and you'll get great exposure! The jobs will just pour in!"

If that statement has an implicit "for free" built into the "do this for us" part, then I agree with Lewis - that's total bullshit. On the other hand, as a statement of what's happened with other people in the past, I think it's fair to say that a number of artists who worked with Adept Press for their first RPG job ended up doing very well with other publishers soon afterwards.

Jeremy McHugh, for instance, tells me that his Sorcerer artwork (Soul, Sex) significantly helped to launch him into his own commercial studio. But I did pay Jeremy for his work - the future exposure wasn't offered as a form of payment. So I mention the possible exposure to people as a potential bennie, not as any kind of substitute for payment.

6 "Contract? We don't need no stinking contact! Aren't we friends?"

I agree with Lewis that "friends" is a bullshit foundation for a business agreement. But I don't think contracts work well either. Too many freelancers are fucked in the ass by companies who don't pay them, and the contracts they signed so earnestly are so much worthless paper. WotC and White Wolf, I'm looking right at you, right now. You fool freelancers into being robbed and your worthless contracts are a tactic in this grotesque practice.

The only foundation for freelancer business that I've seen work well is cold hard payment, up front or very near to up front, before the hard work is under way. I take the risk by paying the person first. It's a good foundation: I haven't been cheated yet, and the artist/layout person can't be cheated, this way.

9 "Our budget is XXX dollars, firm."

If I'm reading this correctly, he's talking about someone trying to negotiate down an artist's stated price for the work. If I'm right in that reading, then I agree with him fully - it's bullshit.

Its phrasing leads me to say, though, that a publisher shouldn't promise money he doesn't have, and thus simply knowing his own real-world budget, and presenting it fairly as a starting point, is good business practice. At the very least, an artist might see that I'm too poor to be worth his time, and it's good to know that and cancel out before we get enmeshed in further dialogue (wasting his time).

Best, Ron

[Justin D. Jacobson]

6 "Contract? We don't need no stinking contact! Aren't we friends?"

I agree with Lewis that "friends" is a bullshit foundation for a business agreement. But I don't think contracts work well either. Too many freelancers are fucked in the ass by companies who don't pay them, and the contracts they signed so earnestly are so much worthless paper. WotC and White Wolf, I'm looking right at you, right now. You fool freelancers into being robbed and your worthless contracts are a tactic in this grotesque practice.

The only foundation for freelancer business that I've seen work well is cold hard payment, up front or very near to up front, before the hard work is under way. I take the risk by paying the person first. It's a good foundation: I haven't been cheated yet, and the artist/layout person can't be cheated, this way.

Not sure I understand the sentiment here. Contracts aren't worthless. If an aggrieved party doesn't want to exercise their rights under a contract, that's on them. I'd be interested in hearing about your anecdotal evidence on this point. I expect it comes down to the freelancer being either unknowledgable about their rights or unwilling to exercise them.

In addition to their legal relevance, contracts are good for making the rights and responsibilities of both parties explicit. It eliminates the problems inherent to the vagueness of handshake agreements.

[Paul Czege]

WotC and White Wolf, I'm looking right at you, right now.

The Science Fiction and Fantasy Writers of America has just established a Grievance desk specifically focused on WotC:

http://www.gamingreport.com/article.php?sid=22365&mode=thread&order=0

Paul

[Ron Edwards]

Anecdotal evidence: right now, today, many freelancers await their checks from role-playing companies. They continue to wait.

Typically, they do not get legal about it (a) because they think they might get paid soon, (b) they don't want to alienate or offend these companies' hiring staffs regarding future work, and (c) they don't have the cash or immediate knowledge to get a lawyer onto it.

Don't bother to post refutations of (a-c). I don't really care to debate about whether they are as much to blame as the companies for being in this position. Maybe they are and maybe they aren't; it doesn't concern me.

I'm saying that what the company is doing - signing the contract, then not living up to the bargain, is wrong. I'm also saying that the contracts do not protect the freelancer from the company doing this wrong thing, i.e., failing to pay.

The only protection against not being paid is to be paid up front.

Best, Ron

[Josh Roby]

Just to pipe up with another data point, in my day job in publishing, I have yet to see a contract provided by a publishing house that protected the rights of a vendor.  Now, it's feasible that the vendor (here an artist) might ask the publishing house to sign a contract before work begins, but generally speaking, that's a dealbreaker from the point of view of a publishing house.  The exceptions are very large projects or very prominent vendors.  Unless you're a name or you're doing massive amounts of work, you're not getting anybody to sign a contract for your protection.  Generally money and contracts flow in the same direction.

[Jake Richmond]

My sould source of income (besides Panty Explosion sales) is my freelance work). Ron has the right of it. This industry is replete with companies that offer contracts and then break them immediatly. 4 times this year I've done work for companies where the contract THEY asked me to sign stipulated that they would make paayment immediatly upon completion, and each time payment was either never made or made several months late. After getting burned the second time I had a lawyer friend look into it. he told me that for the amount of money owed it simply wasn't worth my time to persue legal action.

This is common with every other freelancer I know. Companies don't pay, or hold of paying for months. When you complain they sy your difficult to work with. I've had more then one publisher turn me away becuase they said they heard bad things about me.

I feel that contracts are pretty close to useless. Instead I demand either full or half payment up front. If the client is unwilling to accept those terms then I have to think long and hard about whether its worth the risk.

As a side note, nobody from the Forge or Storygames has every been anything but fair and upfront with me. I've only had very good experiences with people who have contacted me through this forum.



Jake

[greyorm]

Not sure I understand the sentiment here. Contracts aren't worthless. If an aggrieved party doesn't want to exercise their rights under a contract, that's on them. I'd be interested in hearing about your anecdotal evidence on this point. I expect it comes down to the freelancer being either unknowledgable about their rights or unwilling to exercise them.

Justin, some data points here from personal experience: do not confuse unable with unwilling.

Even a contract that specifically outlines what you as the artist are supposed to get out of a deal will do you no good if the company reneges on their agreement, mainly because lower-to-middle-class Joe Artist does not have the thousands of dollars out-of-pocket (and attendant time) necessary to bring the company to court just to get a judgement that he is legally owed his couple hundred dollars of payment.

Even when he does have the time and money to bring a company to court, depending on the company, a judgement still does not guarantee payment. The judgement just reestablishes that the contract was valid and that the company owes the artist money. The court is usually unable to force the company to pay the money; they can say, "Yes, legally, you have to pay them", but chances are you will still never see your money for the same reasons they didn't pay you in the first place, and you are out legal fees on top of it.

And if they don't abide by the judgement, you have to go back to court to point out they have not abided by the judgement, etc. (There are appeals that can be filed by them. A company could tie you up in court for years. They could file bankruptcy.)

I don't mean to scare anyone away from seeking restitution, or claim that this is the way it always works out, but the court system serves the American public, specifically as a way to gain rightful restitution, very poorly and thus claiming that anyone who can't afford to go through the costly expense -- financially or otherwise -- is "unwilling" is a mistaken judgement.

[Justin D. Jacobson]

Justin, some data points here from personal experience: do not confuse unable with unwilling.

Even a contract that specifically outlines what you as the artist are supposed to get out of a deal will do you no good if the company reneges on their agreement, mainly because lower-to-middle-class Joe Artist does not have the thousands of dollars out-of-pocket (and attendant time) necessary to bring the company to court just to get a judgement that he is legally owed his couple hundred dollars of payment.

Even when he does have the time and money to bring a company to court, depending on the company, a judgement still does not guarantee payment. The judgement just reestablishes that the contract was valid and that the company owes the artist money. The court is usually unable to force the company to pay the money; they can say, "Yes, legally, you have to pay them", but chances are you will still never see your money for the same reasons they didn't pay you in the first place, and you are out legal fees on top of it.

And if they don't abide by the judgement, you have to go back to court to point out they have not abided by the judgement, etc. (There are appeals that can be filed by them. A company could tie you up in court for years. They could file bankruptcy.)

I don't mean to scare anyone away from seeking restitution, or claim that this is the way it always works out, but the court system serves the American public, specifically as a way to gain rightful restitution, very poorly and thus claiming that anyone who can't afford to go through the costly expense -- financially or otherwise -- is "unwilling" is a mistaken judgement.

For those of you who don't know: By day, I am an attorney, specifically a collection attorney. I make my living suing people who owe debts to other people. Most collection attorneys, myself included, work on a contingency fee basis, meaning that we get a percentage of what we collect. My client's don't pay me attorneys' fees. If WotC had an office in Florida, I could damn well guarantee you that I could collect every penny owed to every freelancer they hadn't paid. The client's only responsible for actual court costs (usually $300-500, depending on the size of the claim), which are recoverable from the other side anyway. The American legal system does not do a poor job of affording creditors the ability to collect their debts. I've got 100 pieces of anecdotal evidence every month to the contrary. Your characterization of the system on this point is grossly inaccurate. Generally, bankruptcy and collectibility are risks, but not when you're dealing with a company like WotC or when you're dealing with amounts of the type we are discussing. No one's filing bankruptcy over, say, a thousand bucks. And, frankly, most of the people on these boards would be relatively easy to collect from, e.g., garnishing money due from IPR or Key20, levying on your stock of books, or garnishing your wages from your day job, etc. So, sorry, freelancers that don't enforce contracts either unwilling or they're uninformed. Unable is not an issue in any but the smallest percentage of cases.

Just to pipe up with another data point, in my day job in publishing, I have yet to see a contract provided by a publishing house that protected the rights of a vendor.  Now, it's feasible that the vendor (here an artist) might ask the publishing house to sign a contract before work begins, but generally speaking, that's a dealbreaker from the point of view of a publishing house.  The exceptions are very large projects or very prominent vendors.  Unless you're a name or you're doing massive amounts of work, you're not getting anybody to sign a contract for your protection.  Generally money and contracts flow in the same direction.

The contract defines the rights of the parties. I can guarantee you that every contract you sign says the publisher will pay the freelancer at some defined time or under some defined condition. If they don't pay when required, they have breached the contract. It's really that simple. If you sign a contract that says they don't have to pay you at all, then it's your own damn fault.

I had a lawyer friend look into it. he told me that for the amount of money owed it simply wasn't worth my time to persue legal action.

I don't know the specifics, but I've filed suit for cases under a $1,000. It depends on a variety of factors. For example, many states (including Florida) have a statute that says that even if the contract only says that one party gets fees, the other party can also get their fees if they sue on the contract. So, if you came to me with a case that had such a provision, I'd probably take it. And in any case if you were a friend of mine.

Ron is correct that having the contract doesn't keep the company from screwing you over ... in the same way that a bulletproof vest doesn't prevent you from getting shot at. But if you do get screwed over (shot at) you'd be damn happy you had the contract (bulletproof vest).

And forget payment for a moment, how do you demonstrate ownership of the material, e.g., artwork? If the freelance artist you used for your cover sells the same piece to someone else and they use it for their cover, what are you going to do then? If you have a contract that states that you own the copyright, you can send a meaningful cease-and-desist letter and, if necessary, seek damages (including attorneys' fees).

Sorry, guys, but if you think working with freelancers (or, if you're a freelancer, working with publishers) without a contract is the way to go, you're nuts.

And so I'm not just spitting venom: If anyone wants a copy of my boilerplate freelancer contract, I'd be happy to shoot it over to them.

[Jake Richmond]

I appreciate your take on this Justin. This has been a big problem for me over the last year. Most of the jobs I do pay between $300-600. I take about 3 of these jobs a month. I always work under a contract, either my standard one I send to clients or one the client provides. While I don't think contracts are useless (for the reasons you state) I do know that there are tons of companies taht have no problem violating the terms of the conntracts they sign. it seems to be pretty close to standard practice in this industry. I've never done work for any of the really large companies, but I've worked for a number of mid size and smaller ones and I've seen "payment upon completion" become "payment after several months of angry emails" or "payment never".

I've been advised that taking legal action against a small business of this type over a few hundred bucks is a waste of my time. is this wrong? Should I be taking legal action?

I've also had problems with foriegn publishers in the past. Again, I was advised not to bother. Should I have?

Thanks,


Jake

[greyorm]

Justin,

Fair enough. Like I said, my post was based on my personal experience with contracts, restitution, culpability, and the court system.

You state collecting money from debtors is fairly easy by various means. It was my experience/understanding that this required a secondary case after the first, once the debtor failed to pay on the judgement. Was I wrongly informed?

BTW, I am also not saying "contracts are useless, don't use them."
I am saying, "contracts don't guarantee you anything."

[Ron Edwards]

Hello,

If I'm not mistaken, there is a point among our posts here in which agreement is possible. It resides in the education of those who need it that contracts are not protective devices.

Justin, is there room in your life for developing a website devoted to information and possibly advocacy for independent publishers and freelancers in the RPG business? The two have more in common, in some ways, than either has with non-independent contractors.

Best, Ron

[Steven Stewart]

Since folks are talking about their day-jobs and the relevance to contracts, just want to point out one thing that people should never forget about contracts. My day job is to be an itsy-tiny-teeny-weeny part of a great big group of people who oversee one huge contract, it is worth a number followed by a whole lot of zeros. The contract itself is too large to fit on my desk (well at least one of the exhibits - the Scope is), instead we keep it on a network since it takes up about 20 CD-ROMs. So its big. It is a contract with another company that has even more people working on it.

While not applicable to the day to day contract of a free-lancer, there is one thing that is applicable, if either side of the contract starts diggin' into it to get the other side to do something, we are fucked, with a capital f. It means the relationship has broken down. Niether one of us (meaning the two great big huge companies) are going to be happy with the outcome. Both of us are going to be screwed, and the relationship is fucked. The company we are paying is loosing a bunch of credability and will affect future contracts worth a ton of money, and we aren't gettin our product out which worth the contract money times a few more zeros. And I think that is what a lot of folks have saying above.

Point I If you have to revert to a contract your relationship is fucked. Many people equate contract with promise to have a good relationship and not have either party be fucked. But it isn't. If either party resorts to the contract, neither is going to get what they wanted. And most people that are freelancing it (either in writing buisness or "consulting" in other buisnesses like manufactoring and engineering) want a good relationship, good relationship means gettin a rep that you are easy to work with and can help get future work. 

Now, leading to the second point, we usually get what we want (but not always). Not because we wrote the contract, but because we are the 800 pound gorilla, pure and simple. The stakes are too high for the other guy. Which leads to point 2.

Point II If you deal with the 800 pound gorilla (which can be relative of course) make sure you know you are. And remember that he is the 800 pound gorilla. Don't expect it not to act like an 800 pound gorilla. Espically if the company you are dealing with is public, meaning worried about a stock price. The 800 pound gorilla knows its an 800 pound gorilla, and it knows that you don't want your relationship with it to go down the toilet, so even the "best" companies out there will stretch that the furthest it can go without breaking (or sometimes even) breaking it. It is in their bottom line interest to do so. To take as much advantage without damaging the relathionship. And if there are a million one pound monkeys out there, they might not even care about that, there are always more monkeys.

I was going to write some more, but realized that it was drifting off into speculation about contracts that I am not an expert in or couldn't even pretend to be. The jist of my arugements are about contracts, relathionships, and the need to not equate contract with guarantee for good relathionship, but rather at their best, damage control or how I can get fucked the least.

But this thread has made me think, and I thank everyone for that. I know now if I ever want freelance help, I will pony up the money. If you can't afford to pay someone less than a few hundred dollars at risk, then perhaps you shouldn't be thinking about publishing a book.

Apologies in advance if I took a thread that was near completition and beat a dead horse. it just got me thinking about contracts, working relationships with people in a contract, and thought those points might be of interest to people, looking at from a different standpoint.

[Justin D. Jacobson]

I appreciate your take on this Justin. This has been a big problem for me over the last year. Most of the jobs I do pay between $300-600. I take about 3 of these jobs a month. I always work under a contract, either my standard one I send to clients or one the client provides. While I don't think contracts are useless (for the reasons you state) I do know that there are tons of companies taht have no problem violating the terms of the conntracts they sign. it seems to be pretty close to standard practice in this industry. I've never done work for any of the really large companies, but I've worked for a number of mid size and smaller ones and I've seen "payment upon completion" become "payment after several months of angry emails" or "payment never".

I think this is true. But, again speaking from experience, it has become the norm because the freelancers are unwilling to (or uninformed about) enforcing their contracts. If freelancers were more aggressive about enforcing them, the unfortunate practice by some publishers (which I acknowledge occurs) would decline.

I've been advised that taking legal action against a small business of this type over a few hundred bucks is a waste of my time. is this wrong? Should I be taking legal action?

Couple of points. First, as I mentioned, if your contract (or a statute in the jurisdiction where you would be filing suit or as required by the contract) provides for an award of attorneys fees and the debtor is financially viable, there are likely some collection attorneys who would take the case.

Second, and this was a point I meant to make in my last post and forgot, in most any state you can file a small claims action yourself. I'll use Florida as an example since that's the jurisdiction where I practice. A small claims action involves debts under $5,000. You can file the lawsuit yourself, using a form provided by the local court clerk. The rules are relaxed for small claims cases. Your lawsuit can literally be two sentences handwritten on the form: "I did work for XYZ Corp. and they didn't pay me. A copy of my contract is attached. They owe me $x." The filing fee varies by county but is usually a $100-200. Once the suit is filed, you get a summons (also provided by the clerk) and deliver it to the sheriff to serve on the debtor. They sheriff charges around $20. In the summons, there is a date scheduled for a pretrial conference. If you get the debtor served, you show up. If the debtor doesn't show up, you get your judgment. If they show up and raise a defense, the judge will set the case for trial. You come back to court for the trial date. They place you under oath. You testify. The other side testifies. The judge makes a ruling. Obviously, I simplifying the process, but there are literally hundreds of thousands of pro se smal claims cases filed every year in Florida. Any intelligent person can do it. Granted, navigating the post-judgment waters pro se is more difficult, but in my experience a financially viable debtor will pay when they get served with the suit or when the judgment is entered. Failing that, the clerk has some helpful handouts on collecting on a judgment.

I've also had problems with foriegn publishers in the past. Again, I was advised not to bother. Should I have?

If you're talking about Canada and the balance is a little higher, you can retain a collection attorney up there. They also work on contingency, and the system is similar enough to our own. I myself have forwarded a few claims to Canada with mixed success. If you're talking about anywhere else, don't bother. Now you're getting into treaties, sticky service issues, etc.


Jake

[Justin D. Jacobson]

You state collecting money from debtors is fairly easy by various means. It was my experience/understanding that this required a secondary case after the first, once the debtor failed to pay on the judgement. Was I wrongly informed?

Well, I don't want to give you the impression that it's easy. If it were easy, people wouldn't hire me at all. But it is doable--particular by an intelligent, internet-saavy individual like those that frequent these boards. As for post-judgment procedure, it's wrong to characterize it as a "secondary case" (at least in Florida and other jurisdictions of which I am aware). That term implies, for one thing, another filing fee. Once you have a judgment and the debtor doesn't pay, you have to take some affirmative steps to effect collection. Having the judgment opens up a number of procedures to do this: garnishment (where you try to get payment from a third-party who owes money to the debtor, including wages from an employer or money in a bank account), levy (where the sheriff takes possession of property of the debtor, sells it at a sheriff's sale, and the proceeds go toward the outstanding judgment), subsequent voluntary payment (e.g., because the judgment screws up their credit report and they want to re-finance their house or buy a car). The first two of these do involve additional filing fees (garnishment is around $175, levies can be a few hundred bucks plus a hefty cost deposit that you get back afterwards), but you can recover these from the proceeds of the procedure.

BTW, I am also not saying "contracts are useless, don't use them."
I am saying, "contracts don't guarantee you anything."

Agreed.