Late payment and non-payment are the two issues I hear about from creators and managers over and over again. The creator makes the content as agreed, posts it to their stories and grid, and waits the 30, 60, or (unfortunately) 90 days they agreed that it would take for the brand to pay. After having the content live on their profiles all of that time, the brand still hasn’t paid.
They reach out to the brand. They’re told either that payment is coming soon, or the brand never responds. Now what?
Litigation is not the only option for payment enforcement.
They could sue the brand, but many feel that it isn’t worth the hassle to litigate, or worth the bill they will rack up in attorneys fees doing so. Now, not only have they wasted their time negotiating the deal, getting their script approved, and filming the content, the brand has also reaped the benefits of that exposure for a month or three. Believing they have no other viable options, they take the posts down and cut their losses.
Here’s where they’re wrong.
This is where working with a contract attorney can help.
There are a number of ways they may be able to enforce their rights under the deal without immediately filing a lawsuit. And that’s where an attorney (like me) can come in.
The first step is to review the contract to confirm that payment is actually due and understand what it says about payment, breach, notice requirements, termination, usage rights, and remedies. (This is where not having an actual contract and just having an email chain or creative brief may also hurt you, but we’ll get to that another time).
Then, the attorney can evaluate the available options. Does the creator need to provide written notice and an opportunity to cure before taking further action? Would a formal demand be appropriate? If the brand acknowledges what it owes but needs more time to pay, would it make sense to document a payment plan or other alternative arrangement? If the creator has any outstanding obligations, such as a second video, does the agreement give them any right to suspend future performance or withhold undelivered content? And what rights does the brand have to continue using the creator’s content while payment remains outstanding?
These are all issues an attorney may be able to help with on a limited-scope basis, which can be a more affordable option for creators who are ready to escalate a payment issue without immediately suing the brand.
If you’re waiting on an overdue payment or have reason to believe the brand you worked with doesn’t plan to pay you, you may have more options than you think.
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Really interesting!