What to do about non paying client?

[Jesse Hopkins]

{I've asked that this thread be closed - I've learned sometimes you have to be more clear than clear, and perhaps other contractors and developers can learn by what has happened between me and this client - I will be posting the unpaid music that I have written for sale at another time}

I won't name the developer, but I have a client that has been non communicative after ordering a BUNCH of music and sounds at $xx per minute and $xx per sound effect, which I have been working on for over a month (off and on). At the beginning, the client had me doing many revisions and I was working night and day for them. I was paid for a few minutes of accepted work and I was on to the other music they ordered. They became non-communicative around the holidays, and I excused that for holiday business. I emailed them about getting a contract together, because if they were the type to be non communicative, I would like a contract. I kept working because they never cancelled their order.

I delivered some of the audio recently and was told sales were not going well and they would accept music and sfx for credit only (no money).

So what to do? I want to warn other contractors about this developer, but I don't want that to come back at me in some revenge form. I just want to be paid for the work I did, understanding it is too bad the contract wasn't signed before I started work. But I don't like to keep people waiting, especially if the game is very indie, some people don't need the formality of a contract. I do have it in writing that they agreed to pay for my services, but that is in email form.

Any advice?

[Arex]

If you don't have contract I quess there is not much to be done. :\

[Jesse Hopkins]

Originally Posted by Arex

If you don't have contract I quess there is not much to be done. :\

You don't think the agreements in email count for anything? They're not signed with a pen, but they ordered a set amount of music and sfx at a set price, and I was more than half way through.

[FlySim]

From http://www.allbusiness.com/legal/con...ts/2378-1.html

If an e-mail or chain of e-mails clearly states an offer for entering into a deal with all of the material terms, and the other side responds by email accepting the terms, then there's a good chance that a valid contract has been formed — even though no signatures have been exchanged.

If you have the above and the developer is in the US, my guess is that you have grounds for a small claims case (money limits vary state to state). Not sure where you would need to file.

[Dyno Kid]

Hi Jesse,

I know how hard you work!!!

Think it's time to name and shame so everyone is aware of this, he/she might have an artist or other musicians working on this title and you might save them some time and money even thought it might be too late for yourself.

Sorry to hear about this news Jesse.

Darren.

[Jesse Hopkins]

Originally Posted by FlySim

From http://www.allbusiness.com/legal/con...ts/2378-1.html

If you have the above and the developer is in the US, my guess is that you have grounds for a small claims case (money limits vary state to state). Not sure where you would need to file.

Sounds good to me. Hopefully this developer will bear it in mind accordingly. I did at least 560 dollars worth of finished work, (was paid 60) and that's if you don't count all the initial drafts of ideas that were sent (slaved over stuff). So I feel the weeks were wasted when I could have been working on music for my other clients, and getting new clients lined up. And after the holidays, everyone's strapped for cash, but that includes us contractors.

I really appreciate the feedback you guys are giving me about this. It is the only time I have had trouble with a developer, and I think I will learn to avoid it through stricter policies. I like to keep things very friendly with developers, so this is very unpleasant to me.

[Aleksi]

Hi Jesse,

Well, the same thing happened to me about 6 months ago. Got contracted to work and kept sending music and one day... no response... nothing... I kept sending emails and never had replies for weeks (holiday period too)... So, one day i took time to write a long email saying that this wasn't correct, etc... and finally got an answer. An evasive "sorry, we found someone else..."

From now on, i usually request half pay from the start and of course, i always protect my songs under copyright before sending it to anyone!

Either, try to get them to answer you, or send an email warning them they can't use your music or you contact your lawyer.

Feel free to contact me via PM.

Cheers,

Aleksi.

[Bungle]

A lot of this sort of thing happens in the freelance art scene.
There are a lot of websites out there that can help you to draw up a really simple contract which you can get them to sign from the start. Clients that are unwilling to sign are usually the ones that you should run a mile from.
It means that you don't have to ask for money upfront (unless you want to do it that way) and are pretty much guaranteed to not get screwed.

This is an example contract which Carotello, a freelance artist at Concept Art.org posted. She drew it up herself and has not been shown to a lawyer so you may need to do that before you finalise, but it may help you to come up with something of your own and I thought it was pretty damn good!


INDEPENDENT CONTRACTOR/FREELANCE AGREEMENT

I, Name here, whom shall be referred in this contract as the Freelance Artist, have drafted this Independent Contractor/Freelance Agreement on Date, and present for review to Company Name, whom shall be referred in this contract as the Client.

Freelance Artist and Client agree:

Delivery Schedule and Acceptance

Freelance Artist will deliver the work specified in the assignment list, as specified by Client. The Services shall conform to the specifications and instructions of Client, and is subject to Client’s acceptance and approval.

Client has a maximum of 24 hours, starting Date, or upon acceptance of this contract agreement, to provide all specifications for the artwork. The Freelance Artist will deliver preliminary sketches for approval within 24 hours of the receipt of such specifications.

Client has a maximum of 24 hours to reject or approve all preliminary sketches, and must notify Freelance Artist, within 1 day of receipt of work that additional editing revisions and/or amendments will be requested.

Freelance Artist, will deliver all finished work requested on Date, no later than Time.

Revisions to artwork

Client agrees to one revision, to preliminary sketches only, given the limited amount of time for the project. Once this preliminary revision is done, Freelance Artist will commence working on the finished work which shall be final for the duration of this contract.

In the event the Client requires further revisions to an extent that substantially alters the specifications described in the original estimate, it will be considered a complete redo and Freelance Artist will submit a new contract which will outline a new set of fees and a new schedule that both the Freelance Artist, and the Client must agree upon before further work proceeds.


Delivery of Material, and Medium

Freelance Artist will produce the artwork digitally and therefore will deliver the work in digital format, via internet submission, Email, or FTP transfer. If requested by Client, Freelance Artist can also provide a CD with preliminary sketches and finished materials, which will be delivered by priority or express mail at the Client’s expense.

Ownership of Work

Artwork shall be considered made-for-hire under the United States Copyright Act and, at all stages of development, shall be and remain the sole and exclusive property of Client. The Freelance Artist reserves the right to use the images for self-promotion purposes only, and for display in personal portfolio.

Compensations and Fees

Client agrees to a flat fee of $1200 per Illustration, for a total of $2400 for two Illustrations. This fee includes preliminary sketches and revisions to final work, as well as any discussion with Client regarding the project.


Payment Schedule

Client Agrees to pay in full upon delivery of completed work, and no more than 30 days from the receipt of invoice.

Permissions and Releases

Client shall indemnify and hold the Freelance Artist harmless against any and all claims, costs and expenses, including attorney's fees, due to materials included with the Services at the request of Client.


Independent Contractor

The Freelance Artist is retained as an independent contractor of Client. Contractor acknowledges and agrees that (i) Contractor is solely responsible for the manner and form by which Contractor performs under this Agreement, and (ii) Contractor is a self-employed individual, who performs services similar to the Services for various entities and individuals other than Client.


Freelance Artist Independent Contractor

Date:
By: (Signature)
Name:

Client

Date:
By:
Name:
Title:

Hope this helps!

[Roman Budzowski]

You may send emails again, maybe from different email account. Especially if developer is in different country it could just didn't reach him. For example I have very hard time communicating with people outside Poland due to some DNS issues recently.

But if it doesn't help, tell them that you'll watch them closely and if they use your work and publish any game with it you'll just sue them and write to portals / publishers that it infringes your copyright. There was a case here at IGF that a game used sfx from other game and was taken off of portals.

best
Roman

[sillytuna]

Where is your client based? Do you have an email trail containing the cost at least?

What you should do depends somewhat on who your client is, and if they actually can pay or not...

[GolfHacker]

Originally Posted by Aleksi

From now on, i usually request half pay from the start and of course, i always protect my songs under copyright before sending it to anyone!

As an indie developer, I wouldn't pay 1/2 up front before I saw any results. However, I would have no problem entering a contract up front - signing a physical document might be tricky since I don't have a fax, but the signing could be as simple as clicking on an Accept button on a web page that spells out the terms. Also, I would have no problem making interim payments along the way as milestones were reached - you could establish some clear milestones for your clients up front. Then if they don't pay somewhere along the way, you're only out a portion of the work instead of all.

I sympathize, Jesse, I understand how you feel. I thought you did a great job on the Fashion Cents Deluxe sound effects, and I hope this unfortunate event doesn't overly complicate the process for any future work I may want to hire you for.

[MerscomMan]

Originally Posted by Jesse Hopkins

You don't think the agreements in email count for anything? They're not signed with a pen, but they ordered a set amount of music and sfx at a set price, and I was more than half way through.

Even without a contract, if you delivered work to them that was agreed and they accepted it you have a right to be paid. I am not a lawyer, but in the US (and I believe UK) at least there is a legal principal called Quantum Meruit, which I believe would be applicable here. Again, not a lawyer but from my experience you are in a solid legal position.

[Aleksi]

Originally Posted by GolfHacker

As an indie developer, I wouldn't pay 1/2 up front before I saw any results.

I understand. Maybe not half, but at least some sort of amount to avoid working for nothing. I ask half, but most of my clients are not indies and i usually know them personally, and i always sign a contract. But i don't want this to happen ever again, and i feel sorry for Jesse...

[Mjonesgraphics]

Perhaps most of the communication isn't getting through, or perhaps the wrong person is handling this at their end. I know I've completely lost contact with certain clients, who have disappeared off the face of the earth! I'm able to use the unpaid for work as "demo reel" but I've still taken a few hits.
I think it's part of the deal being a freelance contractor. Make sure you get contract, even if very simple.

They might even have a cash flow problem and are trying to see where they can skimp (you). Not pleasant. I'm still owed $1200 from a company that did that, and they released the game! Grrrrrr

[spellcaster]

Well, it depends on the artist, I guess.
But I'd prefer paying something upfront to signing the legal gibberish posted above.

[dma]

I worked with a great voice actor in my last project and we agreed upon an amount I would pay him. Once his work was complete, he sent me a third of the work that he had done, so I could see how it looked in the game. Then once I made payment in full, he supplied me with the remainder of the work. It was a great arrangement for both of us, but then, he was a professional, and so am I.

Unfortunately though, not everyone is, and some have budgets that are dangerously low. Of course, you usually don't find these things out until it is too late.

[Laralyn]

Originally Posted by Aleksi

I understand. Maybe not half, but at least some sort of amount to avoid working for nothing. I ask half, but most of my clients are not indies and i usually know them personally, and i always sign a contract. But i don't want this to happen ever again, and i feel sorry for Jesse...

Why not break the work up into much smaller increments? For example, if the contractor is providing 100 sound effects and 10 pieces of music, the schedule for delivery/payment could be every 10 sound effects delivered or every 2 pieces of music. That way both parties get good results: the client gets to make sure along the way that the contractor is on the right track and making good progress, and the contractor is getting paid for the work as he does it so if the client disappears, he's only lost the small segment of work he's done since the last payment.

If a client says he's not able to pay incrementally like that, then that's a clear sign that there are cash flow issues.

[andrew]

Sometimes even getting large companies to pay invoices takes months! (Midway is a good example)

A signed contract is nice, but the reality is that in the indie world the budgets are small enough where your lawyer fees to sue would be much higher than the money you'd recoup.

I agree with the above, incremental payment is the way to go. If you work with a developer more than once and trust them, then you can be more accomodating. Or go and randomly insert muted sections or beeps in the audio so that they can't use in the final product (but can evaluate).

- andrew

[Dyno Kid]

My artist is on a rev share deal for my new game and i gave him £100 as a good will gesture at his request so maybe a little up front isnt such a bad idea.

Darren.

p.s. Jesse is also working on the music for my new game (amazing work as usual)

[papillon]

I haven't done a whole lot of music contracting... With art it's easier to figure out where to set milestones and to pay large parts of it at sketch stage (a point where it's clear that the artist is working and knows what you want, but that there's a lot more to be done). Music doesn't have such an easy 'sketch' level.

My willingness to pay half up-front would depend on the musician's reputation. If there was concern I'd probably want to order and pay small bits at a time, like laralyn was suggesting.

[cliffski]

You can get references before you start. I think I did that with Jesse, and wouldn't be surprised if he did the same with me. Dealing with people who have been around a while (and a public reputation to defend) is also a good move.

Generally, game dev is a small community and people talk to each other. Anyone who fails to pay somebody for their work will not have a good long term future in the biz.

[Jamie W]

Why not name and shame?

It's sets an example, and will make other people less likely to cross you in future, if they know the fate that awaits them, plus, it does a service to the rest of us (the guy who broke your agreement, will have less scope to do the same to somebody else).

[zoombapup]

Yeah, I think reputation really does make you want to pay even for something you wouldnt really use. I know I've had to do that a few times (cost me a few grand maybe).

Most of the time, I guess the best way is to have some test peices and just set a quick starter project and just see how things go. But it sounds like you did that and then after it went well you went into full production.

Cant really see how you'd improve that overall. Unless there was some kind of escrow service involved or something.

[ZeHa]

You could just sell the music to some other developer, then you'll receive money and they won't have something unique in their game anymore

Don't know if that is possible, though. But if they didn't pay, they can't call it "their" music, or?

[Jesse Hopkins]

Here's the latest:
They just sent me this argument for not paying:
I never asked you to produce anything beyond the first 2 pieces on any kind of schedule. I only agreed to give feedback on the pieces you would send to me.

Here's from our initial emails.
From the developer:
Okay, here the list I have in mind, starting with highest priority.

- in-game bgm for rotating court (rotates around the screen center at 0.5 rotations per minute). 30-60 second loops
- in-game bgm for non-rotating court. 30-60 second loops
- paddle hit, bottom wall hit, top laser hit effects
- ball spin effects
- spash screen bgm. 2 minute and 30 second loops. The 30 second version comes with the download, 2 minute is an add-on for subscribers
- lobby bgm. up to three different ones. 2 minutes each.

The existing effects work okay without bgm, and your taiko piece works good with effects turned off. So if you come up with new effects, they should either work better than existing effects as standalone, or work good with your bgm. Let me know if you want to get the latest development version of the game so you can try out rotation.

I can pay you the $[rate removed]/minute rate for bgm, and just give me some reasonable rate for effects. I can pay you by paypal $50-$100 at a time as I accept individual pieces.

They even knew I was working on all this stuff. I gave them progress updates. About that, they say this:


My understanding was you were experimenting with your music, not that you were trying to force products down my throat!
I said:
If you refuse to pay, you are in breach of contract, and I will be sure to warn other contractors at the IndieGamer forum of your practices.

They said:
Then you'd have to explain that having a conversation about a list of things I wanted in the game was the same thing as a contractual order to you. You'd only create embarassment for yourself.

"A conversation about a list" ??? Interesting, seeing that I even asked for clarification on the very detailed list above, and they went into even deeper specifics about what I should do.

So, what should I do now? What would most of you think if I outed this developer (name and shame as you say) and they sarted saying bad things about me. I do not want to hurt my business. I am NOT happy to be paid for one minute of music when I had written 8.5, plus revisions, plus 4 sound effects.

I am only putting this here so if this person wants to tell other developers I'm a 'bad contractor' for demandig payment, my account is on record.

Counsel from the elders?

Other zingers:
Anyone's that has worked with indie developers understands there's always a chance they'd get paid, and more often a bigger chance that they won't. And that's when they've produced clearly contracted work!

Please go over the language of my emails. The only time I have asked you to produce something for use in the game, I have clearly said it and paid you for it. The tone of the entire conversation has been a "see as we go" basis.

Indie developers have ALWAYS paid me for my work, signed contract or not. So I don't know who he means when he says that about working with indie developers. I've worked on 25 plus projects now. I think I know a little more about Indie Developers practices when to comes to payment.

[barrygamer]

jesse - sounds like either a monumental mis-communication over emails, or a very unprofessional client, and I am leaning well toward the latter

I know its tempting to 'name and shame' but, aside from any legal reasons not to (IANAL), it may be best that you retain your own professionalism regardless of how crap this situation is, e.g. not to discuss any detailed/specific client issues in a forum.

[Jesse Hopkins]

I'll take your advice Barry. If the client continues to refuse payment, I will attempt to sell the music to someone making some kind of battle-ish ball-ish game.

If anyone hears from a developer saying I was a bad contractor because of this, please be aware that it is this client, who I will not name, but who'll be removed from my credits list.
http://www.composerarts.com

If their name is not on the list, you'll know it was them who was trying to badmouth me. It is a shame this has to happen, as I thoroughly enjoy working on Indie games because of their creativity, and the personal relationships that are forged.

Thanks for counsel.

[papillon]

Someone who thinks being an indie means you shouldn't be expected to pay half the time needs to rethink their business.

Not having much budget means whining and begging and pleading and finding people *willing* to work for the small budget you have available, not making arrangements and then backing out!

[goldenpanda]

Hello I am the client, and here's my version.

I believe Jesse did put in a lot of hard work and wanted to believe he was working on a contract for the entire list of sounds I discussed with him. However you can see clearly from his email there *was no package contract* and he was well aware of it.

his email from 12/7
"I was wondering if we should put a solid end date on the project and I could write up a legit contract to sign over full rights of the music to you."

I never gave an affirmative response to this email (I had actually not even read it because I was working on other issues then was on vacation). He went on to produce more bgm which he would later ask me to give feedback on. So that gave me the impression he was just experimenting with music and wanted my opinion, in the hope of producing something I would accept and pay for. In fact, my original proposal was always pay as we go.

my email to him (which Jesse chose to leave out)

you said, "Why not let me know roughly what you need for all the sound and I'll give you a quote with an end date?"

I said, "here the list I have in mind...I can pay you the $60/minute rate for bgm, and just give me some reasonable rate for effects. I can pay you by paypal $50-$100 at a time as I accept individual pieces."

I never got a quote for the package, certainly not any end date back from you. Our contract is based on my last proposal, not yours. My proposal was pay as we go, it was both the letter and spirit of my language and the spirit of our conversation.

From my perspective, Jesse went forth with great strength, to do work which I promised no payment for. I understand he believes in his work, but that does not by itself entitle him to be paid for it. After I told him I will no longer pay for assets, I gave him a chance to finish a few pieces which I had actively discussed to him about, which he flatly refused.

He is of course free to sell the music which were not sold to me, equally I am free of any financial obligations to him so let's just end it right there.

[goldenpanda]

Originally Posted by Laralyn

Why not break the work up into much smaller increments? For example, if the contractor is providing 100 sound effects and 10 pieces of music, the schedule for delivery/payment could be every 10 sound effects delivered or every 2 pieces of music. That way both parties get good results: the client gets to make sure along the way that the contractor is on the right track and making good progress, and the contractor is getting paid for the work as he does it so if the client disappears, he's only lost the small segment of work he's done since the last payment.

If you look over the emails Laralyn, that was exactly the arrangement we worked under, until Jesse decided he needed payment for the entire list I discussed as a vision for my game.

This sums up his attitude:
So, why didn't you say anything when I said I was working on all the music. Are you so naive to think a contractor would make music for free, and you would just have the choice to pay?