As the web evolves, more media companies pop up in the landscape, and more big blogs start reaching out for content, bloggers of all education levels are faced with the option of getting money for the hard work they do. This is an excellent way to supplement one’s income, but it is very important to cover your bases to ensure that you will be paid.
I wish I could tell you, as a long-time freelancer, that everyone is a saint, and don’t bat an eye about paying the considerably smaller sums that have become standard for web writing, but the truth is that the environment is so hostile for publishers and the advertising model so frail, that many will try to cut corners anywhere they can and contractors usually get the short end of the stick. And that’s with legitimate media companies. I can’t count the number of times excellent writers have been taken in by blogs with zero qualms about stiffing them out of a meager paycheck.
Today I sat down with my friend Michael Pilla, and experienced transaction and litigation attorney to go over the things you must take into account and execute in order to have all your bases covered, should you ever have to chase someone to small claims. Please note that this is written based on information for the jurisdiction of California courts, so the more nitty gritty details may not apply to you. Read this anyway, and then do a web search for small claims in your state before proceeding. Most states have very useful information online for people seeking help.
Make sure you know who you’re working for
Is it a person or an entity? It is very important to have the correct name of the entity that is employing you. This comes into play if you need to take the case to court: in order to do it, the correct party needs to be served. If you cannot identify the entity, the case could fly out the window on a technicality.
Once you have the name and information, do some research. Who are they? Use social media to find out if you know anyone who has contributed to their site. Are they satisfied with their experience? Was payment timely? Asking someone how much they make per piece may not be well-taken, no matter how forth-coming the person, but you can ask what the pay rate tends to be for the blog or media company. Also ask the blogger about the rights they granted the blog for their content: does the writer get to keep the rights, or does the blog ask for exclusive rights to the content? Take all this into account when you consider the payment for your content.
Know your worth
It’s exciting to be told that people want to pay you for doing something you love, but don’t get so excited that you give away your work. Your content and the time it takes to produce it has value, and having someone approach you to use it or respond in the affirmative when you offer to write for them is a clear indication that this is the case. Just so you never forget, write it on a Post-It and stick it on your screen somewhere you can always see it: MY WRITING HAS VALUE.
I once was contacted by a magazine that had recently moved online. The exchange between one of their editors and me went something like this:
Editor: I’m not sure how much you were told about the position. Basically, you’d start out on a temporary basis as a contributing online editor. Our blog traffic is carefully monitored and if after your first 10 to 15 posts you garner a large following, there is potential for this to grow into a paid position, depending on the amount of impressions you receive. You will be able to put a link to your personal blog at the bottom of your posts as well as a link to your Facebook page to increase your own personal exposure.
Me: Exposure! That’s great.
Editor: Yes, we out perform all competitors online.
Me: That’s amazing. Weirdly, my landlord won’t let me pay rent on blog traffic and Facebook friends. So passe, right?! Heck, even my internet provider won’t let me surf on for +K, even though I’ve an impressive Klout score. How many Twitter followers do advertisers provide you for ad placement?
Editor: I don’t understand the question.
Me: It’s the new currency, right? So obviously advertisers pay in Twitter followers and Facebook friends.
Editor: No, that’s not the case.
Me: How peculiar!
Your landlord, your Internet service provider, the 7-Eleven on the corner, Whole Foods, even publications don’t accept payment in social currency. But we should? Be discerning with the publications you agree to provide content for free. Avoid in particular blogs and sites like the one above, which demand a number of free posts — posts that you have to market in order to get a chance to maybe write for them for pay later.
Temporary, potential, depending: red flags. Oh, but at the end you’ll get to link your blog! I was a journalist once. You want to know who reads by-lines? Other journalists that want to tear you a new one for your coverage; your parents; and your friends. Don’t count on it making you famous and sought-after. If a blog wants to give you exposure, they can give you ad space.
Asking for ad space is a creative way to get around a small pay rate on popular blogs that just don’t have the means to pay writers just yet. I’d estimate that an ad generates click-through at around 1 percent. That’s not half bad for a site with great traffic and certainly worth asking about.
If you want props for writing for a big site and they won’t pay or give you advertising and you decide to suck it up, you only need to write one piece to claim you’ve written for them. One is enough. Landlords have been known to throw in a month of free rent for signing a lease, too. Just the one, though.
Basically the rule of thumb is: don’t do anything your landlord would not do.
Other key details
Payment is not the only thing that you’re going to need to discuss, though it certainly gets all the attention. A comprehensive list of what you need to cover looks like this:
- Who you’re working for
- What the blog expects you to produce and at what frequency, if any
- Where the content you produce will appear
- What amount you will be compensated
- What rights they’re purchasing. Read this article for more details about rights.
- When you can expect payment — 30 days after publication is common
- What jurisdiction and venue applies to your contract
The last one is important, Michael Pilla tells me, as it can be difficult to make a claim if the blog you’ve written for is not in your state. Some big media companies may not allow you to negotiate the venue and jurisdiction, so it’s essential that you ask what theirs is, and read up on the laws there. But as often as possible, try to make the jurisdiction and venue your own.
Hashing all this stuff out over e-mail is best, because e-mail serves as a document trail that can be used as evidence in lieu of a contract, but it’s always a good idea to have a contract. You don’t need a fancy, legalese document to ensure your rights are protected, though. You can easily collect all the key points on which you have agreed into an e-mail and send it to the party that hopes to employ you, asking that they reply in the affirmative. A simple, “Yes, I agree to those terms” in a response, with the terms included in the e-mail body is sufficient in small claims.
If you speak on the phone, jot down the terms and send these in over e-mail, asking for a response in the affirmative. You can also record the conversation, but make sure that the person with whom you’re speaking identifies themselves and names the entity that is employing you. If either of you is in an all-consent state, make sure that you record the portion of the conversation where you state that you are recording the conversation for your records.
Without a documentation of contract terms, a case will rest on credibility of the party bringing the claim. In this case, even with a post in your name on their site, all evidence would be highly subjective, Pilla notes — it’s not a hopeless situation, but the more you document, the easier it is to reach a solution that favors you.
Going to the court
You may not need it yet, but it’s always a good idea to familiarize yourself with the law. A lot of people are under the impression that suing is a very costly process, often letting themselves be taken in by disreputable people who benefit from their hard-earned work. The truth is that small claims court can cover you up to $7,500, soon to be $10,000 come January.
If a verbal agreement was broken, you have two years to file a claim. If the agreement is written, you have four years. The fees for filing with small claims are $30 for sums up to $1,500; $50 for sums between $1,500.01 and $5,000; and $75 for sums between $5,000.01 and $7,500.
Not only do you not need a lawyer, one cannot represent you even if you did want to bring one. Neither do you have to deal with tricky rules regarding evidence. Basically, all you have to do is gather all the evidence you have to show that the entity you’re suing owes you money for the work that you did. Note that in California, you may be entitled to statutory damages under Labor Code 203, please check the California Small Claims Self-Help Center to read up on damages.
It takes between 20 and 70 days for a claim to go to court. Once there, the judge may make a decision at your hearing, or mail it to you later. You can’t file an appeal if you were the one to make the claim, though you may appeal if someone filed the claim against you. If the entity you sued appeals, you may bring a lawyer to represent you this second time around.
It should be mentioned that you may not need to go to court at all. Sometimes you can avoid it simply by sending a demand letter. This letter is something that will count in the court as evidence that you attempted to reach an agreement yourself, so make sure that the letter is calm, cool, and collected. The California Small Claims Self-Help Center offers help with this. Here’s an idea of how one such letter would look:
August 16, 2011
Via Priority Mail with Delivery Confirmation (or however you choose to mail it)
[Name of the entity that owes you]
[Address line 1]
[Address line 2]
Re: Demand for Payment
Dear [Full name]:
Please be advised that you owe me the sum of [amount] as per the written agreement made on [date] between us indicating that in return for [specifics of the work], I would be compensated by you no later than 30 days after publication. It has been [number of days since publication] days since my piece ran on your blog [blog name, (link)].
This will be your only chance to settle this matter before I file suit against you in Small Claims Court. I am agreeable to a lump sum payment, or to a payment plan. Please contact me on or before [date of choice] for purposes of settling this matter. If I do not hear from you on or before [date selected], I will file a lawsuit against you without further notice. It is in your best interest to settle this matter before a lawsuit is filed. If a judgment is obtained against you, it will negatively affect your ability to get credit, you will be ordered to pay court costs, and you will incur interest at a rate of 10% per annum.
Based on the foregoing, I expect payment in the amount of [sum owed] made payable to me, [Name], [Address] no later than August 21, 2011. I can be reached at: [telephone number and/or e-mail address]. If you decide to ignore this demand for payment, I will further pursue all of its legal remedies without further notice to you. This letter serves as evidence that I have attempted to resolve this matter informally.
[Address line 1]
[Address line 2]
cc: include anyone to whom you find pertinent to send a copy.
It shouldn’t have to come to this, but it’s better to be informed in the event that those to whom we provide our hard work do not pay. The three most important things when it comes to protecting yourself are information, documentation and organization.
Make a folder for every entity you work with and put your agreements into it, along with any notes about pending payments and all pertinent communications. If these are made over e-mail, keep them in your e-mail archive. If they are made over the phone, ask to record them and keep a log of all call dates and times as well as the name of the person with whom you spoke.