posted
So, early this year one of my stories got accepted by Strange, Weird and Wonderful magazine. It was published in the July issue. The contract stipulates a payment of $20 for the story, payable within 60 days of publication and they get exclusive rights for 2 years.
Well, just recently, the magazine ceased publication...and I have yet to be paid for my story.
I realize that since it was published I, sadly, loose my first rights and can't try to sell it again normally. But what I am wondering, due to the fact that the lack of payment constitutes, I'm pretty sure, a breach of the contract, would it allow me to at least try and go ahead and sell it as a reprint to one of the few places that take such?
It isn't the end of the world either way, but I would like some opinions on the matter.
Posts: 2626 | Registered: Apr 2008
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posted
If there is one thing I have learned is that contracts are always confusing. I am no lawyer either but I used to own a business that worked under contracts. I would suggest either talk with a lawyer or wait the two years out. Every contract is different so without seeing it, I don't think anyone can give you good advice on this.
Posts: 725 | Registered: Jan 2011
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posted
Technically, they breached the contract when they didn't pay you for your story within 60 days of publication.
Have you contacted the editor and requested payment?
Despite a breach of contract, you are sometimes required to give the other party an opportunity to make things right.
Posts: 525 | Registered: Sep 2010
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posted
You could take it to small claims court but the filing fee would cost you more than the $20 owed (though you might recuperate court costs if you win).
My concern is the following - you send it to another publication, they publish it and this magazine's editor sees it and decides to send that publication a cease and desist claiming they have first publication rights for 2 yrs.
It would make you look bad regardless of who's at fault.
The problem is that they partially performed the contract- they published but didn't pay. Assuming there was no termination clause in the contract, their failure to pay might mean they effectively terminated the contract. This is typically the kind of situation a judge has to arbitrate if parties can't agree on a settlement.
So, I would send them an official letter (possibly registered if they have a physical mailing address) stating that because they didn't pay you in the time specified the contract is terminated.
Posts: 525 | Registered: Sep 2010
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posted
Honestly, if they ceased publication who is there to go after you if you are to resell the story?
I personally would just try for the reprint market. You weren't paid for your work, so in my opinion your rights are your own to do with what you will. You totally have a case for breach of contract (a pre-emptive case to any they might have if you do resell the story.) And really, I have never heard of people actually going after rights like this in short fiction markets when markets have closed up. Publishing companies, different story and much more complex (which is why it's so important to have an IP lawyer work with you on any publishing company contracts!) but in short fiction markets? I just can't imagine this would ever even come up. For one, it could well be two more years before it sells, or if it sells again it could be more than the 2 year period before it comes up in their publishing schedule.
If I might also be so bold as to say - 2 years for 20 bucks seems like a very small amount of payment for a very long contract term on rights. In my opinion I would not agree to that term on a short story in the future. One year seems to me to be max, though many short fiction markets only seek a 3-6 month window.
Also, my understanding is there's quite a robust reprint market for short fiction. Anthologies, audio rights, overseas sales, etc. I've never really pursued it because I don't write a lot of short fiction and I'm indie publishing my work these days, but I think you might be surprised at how many potential markets there are for a reprint. In many cases to an editor it says "well, at least one other editor didn't think this story was a steaming pile of dung." Posts: 1911 | Registered: Mar 2007
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posted
Hmmm, this type of thing is one of the mysteries of writing for money. It has happened to every pro, sometimes for a pro payment and sometimes with a whole novel.
Sounds like they not only didn't pay you but that the other party on the contract doesn't exist anymore. But not being a lawyer I really don't know if that is really the case. I would think that the editor is no longer an editor, for that magazine anyway, but then again it could be they are trying to reestablish the magazine. That has happened also. The no response is in your favor. But is their website still up? Does it say anything about what happened? Of course a website still up doesn't mean the magazine is still alive. I know two cases where the last issue of a magazine stayed up for at least a year. One might still be up but I lost the link to it, I knew the owner- editor and sent him three eE-mails which he never responded to. He never bought one of my stories so that wasn't an issue but he did say I could join his next writing class. ralan.com finally declared it dead.
I would say wait a while, it is still possible that they might come back and pay you or they might have faded away with the desert wind and they are truly no more. That happens a lot. One would think they would be nice enough to at least release you from the contract even if they couldn't pay but not al editors and owners do.
Posts: 5289 | Registered: Jun 2010
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posted
The magazine's website is still up, but they are no longer publishing. Their is mention on the website of an anthology of some sort and an email to use for questions...I sent an email to that address a couple of weeks ago now and have gotten no response.
quote: If I might also be so bold as to say - 2 years for 20 bucks seems like a very small amount of payment for a very long contract term on rights. In my opinion I would not agree to that term on a short story in the future. One year seems to me to be max, though many short fiction markets only seek a 3-6 month window.
I agree and, before this really became an issue I'd already decided not to submit to them anymore for that reason.
quote: Also, my understanding is there's quite a robust reprint market for short fiction. Anthologies, audio rights, overseas sales, etc. I've never really pursued it because I don't write a lot of short fiction and I'm indie publishing my work these days, but I think you might be surprised at how many potential markets there are for a reprint. In many cases to an editor it says "well, at least one other editor didn't think this story was a steaming pile of dung."
This hasn't really been my experience. When I search Duotrope for markets that take reprints, not a lot comes up. Most, in my experience, want unpublished fiction. Of the ones that do take reprints about the only ones that pay more than a few dollars are the Pod audio markets, which is where I'd probably send it first...unfortunately, the story has already been rejected by several markets, like Allegory and Shock Totem, that do consider reprints.
Chances are I'm not really going to worry about it. My main frustrations, truthfully, are that the thing sold to a magazine that now no longer publishes (and there are new, higher paying markets that have come into being since the acceptance I could have sent it to) and that the editor hasn't even had the courtesy to respond to my several emails.
Posts: 2626 | Registered: Apr 2008
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posted
This is not official legal advice: If they never performed then they are in breach. The contract is broken. You are owed some degree of damages because, as a result of your reliance interest, you lost your first publication rights and so must be compensated for that. Unfortunately you'd probably have to sue them to get your $20 which is hardly worth it. However, since they breached the contract (which is certain once the time period has elapsed that they agreed to pay you within) they no longer have any claim on anything you gave them in the contract. So they do NOT have exclusive rights to your story for two years because they never performed, resulting in a broken contract, and so you are no longer bound by it.
Or so it seems to me.
Posts: 56 | Registered: May 2011
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posted
I guess they partially performed by publication, in some strange sense, but to me that seems backwards. I think you performed, which is what enabled them to sell your story, and they did not perform because they didn't pay you. The deal was you give them a story and rights to it and they give you a one time transfer of money. From that perspective, they are in breach. I really don't think it can be construed another way and be convincing. I would do like others suggested and send them a notice that due to their failure to pay you in the specified time they are in breach and therefore the contract is terminated. (Again not speaking in any official sense, I believe that is a very strong argument).
Posts: 56 | Registered: May 2011
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posted
Seems to me the contract was partially fulfilled. Publication is a larger performance of the contract than the $20 payment. I do think nonpayment is a breach of trust; however, breach of contract is a legal decision found by a trier of fact, a jury or a judge, on a case-by-case basis.
Posts: 6037 | Registered: Jun 2008
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posted
It would be helpful to see the exact language of the contract. But the problem I have with looking at publication as a partial performance is that it seems to imply that they published it for your benefit, and not their own. When in reality you gave them a property interest in exchange for money that was to be given at a certain time but was not. They made money off of your work and you were never compensated. There is no way you would be expected to be bound by terms of the contract, i.e. that they own publication rights for the remainder of two years, when they have never paid you and never compensated you. Yeah, extrinsic, whether or not there was a breach is a matter of fact and not a matter of law, sure, but the writing is pretty clearly on the wall IMO.
I say notify the publisher that he has breached and therefore you are not bound and may go on and sell the story elsewhere.
Posts: 56 | Registered: May 2011
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posted
The chokepoint I see is the digest still holds exclusive reproduction rights and will until there's a legal decision handed down or an agreement is reached between the respective parties, or until the term expires.
Notifying the digest they are in breach is a one-sided opinion until a formal and unequivocal, irrevocable resolution is reached, no matter how unethical the conduct of the digest. Otherwise, the risks of unpleasant, unfavorable, and costly litigation seem to me the overriding concerns. That and harm to reputations.
Posts: 6037 | Registered: Jun 2008
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posted
When a contract is breached it's dissolved, it doesn't have to be officially dissolved in court like a divorce. Contracts form outside of court and they are breached and dissolve outside of court all the time. Contract law is pretty much there to protect the interests of a party that's been injured by a breach who did not breach, it's not about punishing a party for breach or anything of the sort. I digress though.
Notifying them of the breach and then moving on is a perfectly acceptable remedy. If they have a problem then they have the option of taking it to court (which they won't do because they have no money and no legal argument) in which case it can be officially resolved. At that point all they could say is that his refusal to give them the publication rights was a breach, and he could say that their refusal to pay according to the agreement was a breach--and that they breached first. I really think they're SOL on this one. The wrong thing to do would be to wait for two years after getting no compensation and no further contact from them.
Posts: 56 | Registered: May 2011
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posted
Is this the publication and editor in question?
Strange Weird and Wonderful Magazine David Russell (swandwonderful@aol.com) 3315 Lillie St Fort Wayne Indiana,46806 US Tel. +0.2604568780
(address and telephone number is public information - it is the information he registered with publicdomainregistry.com)
This isn't legal advice - just opinion:
I still suggest sending him a letter through registered mail requesting your payment within a reasonable time (a month) otherwise you will consider your contract terminated.
You might get lucky and you'll receive payment or he might ignore the letter just as he has the emails and you're stuck waiting the 2 years because it'll be cheaper than hiring a lawyer to fight it out.
Posts: 525 | Registered: Sep 2010
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posted
That's the one, redux. I may do the letter thing eventually...but right now, it's honestly just not really worth the time...perhaps after the holidays or something. While I agree with Wannabe about the breach of contract, I will probably forgo doing anything with the story, mainly for one of the reasons extrinsic mentions. I don't want to send it out to a reprint market and have them see that, as far as they can tell, the rights have reverted back to me.
I posted here mostly because I thought perhaps someone else had had a similar experience and maybe there was some "industry consensus" I could go by. But it isn't critical either way...at least one of my stories got out there.
Posts: 2626 | Registered: Apr 2008
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posted
I should be clear, I am not a lawyer. I don't have rigorous legal training in this exact subject. I'm purely speaking my perspective on the situation and my own understanding. That said I am extremely confident in my assessment, but I'm not technically qualified to the point where my confidence means anything. Good luck!
Posts: 56 | Registered: May 2011
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posted
I guess I should clarify my credentials too. I am not a lawyer, though I do work for the courts system, and I have done coursework for editors on intellectual property law. I've seen the law in action from all sides: complainants, plaintiffs, the People represented by attorneys general, writers, editors, agents, publishers, lawyers, judges, juries, government bureaucrats, and, of course, consumers.
The one thing that gives me greatest pause is that anyone for any reason may file a legal action. I can't afford to cross town, let alone cross the country. Most anyone could sue me and win by default because I was a no-show. So I err on the side of extreme caution.
Posts: 6037 | Registered: Jun 2008
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posted
Caution is usually good, but I hate when caution allows the injuring party to get away with something.
If M-E has a copy of the original contract, e.g. e-mail exchanges, and it can't be disputed that payment was never received, I think in a trial situation he could easily move for a summary judgment because there are no disputable facts (unless the publisher somehow claims it paid M-E for the story).
If it is true that the contract stated he'd be paid in a certain time frame, and he wasn't, the contract is void due to breach on the part of the publisher. M-E is no longer bound by any concessions he made in the contract. Because he lost his first publication rights he is also owed damages. The publisher would be a fool to bring this to trial at all.
Or so it adds up in my mind.
Posts: 56 | Registered: May 2011
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Good luck!
