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06/10/2005 10:35:56 PM · #26 |
In many small claims courts jurisdictions you are not allowed to have an attorney, the parties must represent themselves.
If you are considering using small claims, I suggest doing some legal research first. My favorite resource for legal info intended for the average person is at Nolo Press -- they have info on copyrights, contracts, small claims, and about everything else. Libraries often carry some of their books as well. |
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06/10/2005 10:37:46 PM · #27 |
I have no experience as a professional photographer especially a wedding photographer. I hope you don̢۪t mind but I thought I might bring up a point that I didn̢۪t see mentioned throughout the thread unless I missed it. Could they be divorced already? Of course she would not want the pictures if that were the case and marriages have lasted a shorter period of time than this.
The second thing I wanted to say do you have the means to contact the brides or grooms parents. If they were in the pictures you may want to write them and say that Mr. & Mrs. XXXXXXX have took delivery of their wedding photographs and I am having a hard time contacting them. I am contacting you for the following reasons. 1. I only hold proofs and photographs for one year. With a constant growing client base I don̢۪t have the space to store the photographs for couples or their families for a longer period. 2. Seeing that this was a wonderful occasion in your life as well I would like to offer you the opportunity to purchase a full set or partial set of prints before I have to dispose of them.
By doing this you may get the parents involved and ask her why she has not paid and even offer to pay it for them. It also gives the parents an opportunity to buy some are all prints as well.
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06/10/2005 10:39:29 PM · #28 |
You had no contract, you still have the photos. Until you've experience a law suit you can't understand how much you should avoid them..like black death. In Canada, a verbal agreement holds up in court far better than one on paper (from lots of experience letmetellya) but the thousands it'd cost in legal fees makes no sense. THen again I don't know anything about small claims court or how much it costs. I only know about big cases and big scary court rooms with big scary lawyers and such.
Message edited by author 2005-06-10 22:41:06. |
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06/10/2005 10:44:16 PM · #29 |
Originally posted by GeneralE:
In many small claims courts jurisdictions you are not allowed to have an attorney, the parties must represent themselves. |
Thats right general but they still have the right to appeal. Thats when it is no longer fun. And if you loose you likely will pay for their lawyer too.
Message edited by author 2005-06-10 22:45:23. |
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06/10/2005 10:50:12 PM · #30 |
Originally posted by David Ey:
Originally posted by GeneralE:
In many small claims courts jurisdictions you are not allowed to have an attorney, the parties must represent themselves. |
Thats right general but they still have the right to appeal. Thats when it is no longer fun. |
It would not be economical for them to appeal a decision for $300, which they had lost. It usually requires an error of law on the part of the lower court to overturn a decision, not just a chance to pay more money to convince a different jury. Would any "reasonable" person believe that this person just showed up and took wedding pics and tried to extort money, vs. the story that the couple stiffed the photographer.
It's one party's word against the other, and the photos form what I'd consider prima facie evidence ... I'm pretty sure I know which party I'd believe. |
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06/10/2005 10:57:41 PM · #31 |
Economics is out the window when you deal with people.
The jerk I took to SCC should have paid me the $1500 awarded by the judge which was about 30% of my loss. But He had rather take it to a higher civil court. Now I have no choice but to use my attorney.
Well, there is the mediation stage first, then court. It all cost me money.
(sent you a funny email Gen......Hope you aren't afraid to open it)
Message edited by author 2005-06-10 22:59:19. |
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06/10/2005 11:26:55 PM · #32 |
Originally posted by David Ey:
(sent you a funny email Gen......Hope you aren't afraid to open it) |
I'm not usually afraid of emails if I know who they're from ... : )
Ah ... I need to download and install a new video decompressor before I can see it, and my sound isn't working either : (
I'll have to get to it later, but I got the file OK. |
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06/10/2005 11:36:47 PM · #33 |
Not sure on the specific laws in your state/area. I've had a similar experience accepting a post dated check. But, of course this could be completely different. I accepted payment on a thursday for a check dated for friday to an accoun that had be long closed. The bank would not do anything and because I accepted a post dated check the law wouldn't do anything. I was out $350 for a tv and stereo.
However, in the same sense, that you in some way verbally agreed to accept delayed payment this could be legally binding. I know in New York and Florida a verbal contract is binding.
This happens alot though, unfortunately. I've heard of bands, photographers, caterers, renters.. All these people who squeeze through the law because of such things. My friend recently had a renter do this, and becaue he verbally agreed to wait for a payment, the court saw it fit not to make the guy pay him. The guy got a month or 2 free and wrecked the place before leaving.
But we all learn, sometimes learning hurts...
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06/11/2005 12:14:47 AM · #34 |
Originally posted by dpakoh:
Not sure on the specific laws in your state/area. I've had a similar experience accepting a post dated check. But, of course this could be completely different. I accepted payment on a thursday for a check dated for friday to an accoun that had be long closed. The bank would not do anything and because I accepted a post dated check the law wouldn't do anything. I was out $350 for a tv and stereo. |
Giving you a check written on an account already closed is fraud and a crime. It should be reported to the District Attorney's office, regardless of whether there is any desire for or hope of financial recovery. |
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06/11/2005 12:16:40 AM · #35 |
Originally posted by qazwix:
I shot a wedding back in October for $300. The verbal agreement was that I was to be paid the day of the wedding. For one reason or another I was promised to be paid a week later. Being the nice guy I was, I agreed. After several attempts, I’ve only got a hold of the client a few times, in which she promises to pay as soon as her paycheck arrives. I still have the photo’s – she has not received anything. My first mistake was not having a contract – I now know for next time. But the question now is what to do. Should I just give up and cut my losses or should I try something in the small claims courts? Has anyone done this and live to recommend it for such a small amount of money? Any ideas of what I should do?
the Q |
In your next communications with her, tell her that the photos will be unavailable after one week. She has one week to pay you for them or they will no longer exist.
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06/11/2005 12:37:55 AM · #36 |
| If you send her a letter, make sure it is certified or whatever to prove that she received it. |
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06/11/2005 12:41:08 AM · #37 |
Originally posted by karmat:
If you send her a letter, make sure it is certified or whatever to prove that she received it. |
Registered I believe that is (I'm sure the US Postal service is similar to Canada Post). You can probably double register or at least have tracking turned on so you can tell when it was signed for and see the signature.
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06/11/2005 12:50:48 AM · #38 |
| Certified, return receipt requested will cover you. Cost should be under $5 -- you can figure it out using the USPS Rate Calculator |
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06/11/2005 12:51:01 AM · #39 |
Originally posted by GoldBerry:
You had no contract, you still have the photos. Until you've experience a law suit you can't understand how much you should avoid them..like black death. In Canada, a verbal agreement holds up in court far better than one on paper (from lots of experience letmetellya) but the thousands it'd cost in legal fees makes no sense. THen again I don't know anything about small claims court or how much it costs. I only know about big cases and big scary court rooms with big scary lawyers and such. |
I know someone that can probably back me up on this one but.. I don't know what "Canada" you come from, but the one I come from honors written contracts far more bindingly than verbal. Many judges won't even look at a case regarding verbal contracts unless that verbal agreement was caught on some for of recording. As for "thousands it'd cost in legal fees".. in small claims!? I think the base fee for small claims is somewhere around $50 - $100, and you don't even get a lawyer for that. Unless Alberta has entered some kind of "Super-Warped-Legal" mode that I was unaware of, you're entirely off base.
Of course, the best way to know is to have a Canadian Lawyer *cough*cough* stand up and smack us both down.
As for the original question.. I would suggest just writing it off.. that's what I would do.. your time and energy is far better spent moving on and getting other shoots and what-not. The suggestion of keeping the photos and releasing them if the bride ever *does* miraculously pay you is also good advice.. if you care about it that much.
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06/11/2005 12:55:21 AM · #40 |
If only you could pay the few extra bucks to get some of those new custom photo stamps printed up, and use one of her photos on your promo stamps. but I guess that could get you in trouble.
Maybe do that if they refuse to pay. I sure your verbal contract included a release allowing you to use the photos in self-promotional pieces.
Besides, you own the copyrights. The only way they would own the copyrights would be if it were a "work for hire" which would tend to undermine their overall argument. |
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06/11/2005 01:01:57 AM · #41 |
At your current stage I would suggest you kindly give your client a date after which you will archive the images. After that date you add a charge for retreiving the photos from long-term media. If she hasn't exercised the new option you're going to give her to purchase the images at the originally agreed upon price of $300 then just drop it. This is based on my idea that if you want to be in business you shouldn't be a doormat for anyone but you definitely don't want to go bangin' other people on the head when it was your mistake in the first place.
Now that last phrase may not have made sense to some readers so lets take it up on the 2nd point: in any future instance where you are going to shoot photos for someone . . . sign a contract with them. Get it in writing. Explain clearly what you are promising to give them and what they are agreeing in advance to pay for said service or products.
Now to make all of this never happen again, don't just stop at having a contract; require full payment before shooting the first photo. I'm happy to give free consultations to brides-to-be, their fiances, their mothers, their maid-of-honor and/or any other family or friends who want to come ask me questions and look through my books. It seldom takes more than 30 minutes for the initial consultation so I figure I'm out very little. If the bride wants to actually book a date, she must give me a deposit of $250 or 20% of the total (whichever is greater). This is non-refundable unless I miss the wedding for some reason such as my own death. Around here my prices (starting at $500 ala carte or 750 for a package) are considered very low and I've not had anyone hesitate to pay the deposit. The balance of the payment must be made and cleared before the wedding so I make sure to gently notify the bride/parents/benefactor early enough so that they can get the payment to me in time for the wedding.
This workflow may not be best for everyone but in my experience it allows me to be honest and friendly with all parties and no one gets upset or worried. I try to keep in mind that the bride & groom and their family and friends are all probably very busy in the weeks before the wedding and so I make any communication friendly. Staying in front of getting your business fees for an emotional service is (in my opinion) a nice thing to do so that you're not having to remind anyone on the day OF the wedding how you're there for the money. You get to relax and work to capture the emotional nature and try to get those shots that will spark the memories rather than being pissed that you saw the father-of-the-bride pay the rabbi or priest or cake deliverer or whomever. No one has to worry about when they are going to slip you an envelope with a check in it. You don't have to think about when you're going to slip around the corner to make sure you got the right amount and that they signed and dated the check.
I'd give the bride a gentle and friendly reminder (be kind, she'll always be word-of-mouth advertising for you if you handle her correctly). If she isn't interested, well, you learned a relatively cheap lesson about being involved in someone's wedding.
-WHEW-
Hope you're still awake and I hope you and the bride find an agreement that works for both of you.
Kev
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06/11/2005 01:50:21 AM · #42 |
I would kill her with kindness and ask her if she'd like to make payment arrangements.. Your customers are imporntant and #1.... I know this from management.. and years of customer service..So instead of demanding payment and threating or going to court ask her if she would like to see them, maybe perhaps throw in a wedding picture frame like or a book another picture or packet...Either way it would be a nice gesture if you ask her if she'd like to make payments break down the $300.00... and in a billing statement that you send to her or deliver leave a free small print..(not one of the best) and some thumbnails where they all fit on the paper....Your response may be a little better..
How many others were using point n shoot cameras? They may have enough where she is unable to pay for them..
Just remember this rule "Kill them with Kindness!" works like a charm everytime even when you mess up the order..
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06/11/2005 04:30:02 AM · #43 |
Originally posted by Arcanist:
...what mavrik said. Regardless of what comes next, you have to set a dead date with her, but don't ever actually delete the images, just write it off at that date and someday, she may come back to you happy that you still could give her the shots.
Let her know that if she would like to start a payment plan with you, and will send $50.00 per pay period (assuming every two weeks), you will extend the time frame that you will retain the pics, and deliver the images when payment is made in full.
As a former wedding DJ, our payment plan was very up front and always in writing. From the date they contracted, they began payment and final payment was 30 days in advance. None of the couples who hired us ever complained about it or stiffed us and I'm happy to say, we also never needed to give any refunds.
In your correspondence, include two of the best images you shot at 4x6/5x7. Print them with a massive, but translucent watermark so she can look at em and want em. Then make it easy for her to budget and she may just bring some money to the table. You could also offer an extremely limited number of unmarked prints if she knows that she can't get $300 together in that time. |
I agree with Arcanist,
This seems to be the professional way to handle this. You can't sell the photos to the relatives or anyone else without a model release or you may be sued. You should never tell the court you charged more than you did as one person suggested for moral reasons and because liars get caught--not good for your business. If you send her watermarked copies of good shots, I guarantee that she will show them to other people and if any of them have any money they will try to purchase them. If they don't after that, then they probably really don't have the money and you should let it go, chalk it up to experience and lesson learned.
Also, court stinks, if you've never been, the good guy doesn't always win, things get twisted , my advice is to avoid the hassle unless it's for really big money, otherwise it may not be worth your time and bad publicity.
Message edited by author 2005-06-11 04:34:54. |
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06/11/2005 04:53:44 AM · #44 |
As has been mentioned, going to court over it is just going to end up costing you more than the time you already have invested. Unless the issue has become personal, or you wish for it to, I have to say it's not worth it.
However, if you haven't already -- sent the client a contact sheet with thumbs of all the images. They are too small to be of any real use to them, but if you have any intention of every buying the images from you it will be much harder for them to justify based on unknown quality.
David
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06/11/2005 05:56:11 AM · #45 |
No one has mentioned this, and I'm not even sure you can do it, but what about putting some kind of lien on them? Or reporting the debt to the credit bureau?
Before doing so, I'd try one more time to motivate them in a positive way. These people are your customers and they'll be talking to other potential customers. Would you be willing to give them a referral agreement? Would you be willing to negotiate the debt in some other creative way? Could they provide you with another type of return service to work off the debt? For instance, if the guy had a lawn service business and he could provide landscaping or something for you. I'm sure you are frustrated, but if you could take a step back and approach the problem from a different perspective you might find a way to satisfy both your needs.
I'm not sure the best solution is legal action. It's a lot of extra hassle for you and it's only $300. You've lived without it for this long. Take the tax write-off and chalk it up to a lesson. When you pay to learn, you don't forget. |
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06/11/2005 06:18:03 AM · #46 |
Another scenario to her being divorced already may be that non-professional photographers at the wedding took photographs she is happy with and no longer sees the worth of paying out $300.
I, of course, paid my wedding photographer but, despite looking at his portfolio before booking him, a lot of his images were poor and were beaten hands down by guests at the wedding.
All this is no reason not to pay but... I'd consider it a lesson learned for failing to get a written contract and payment in advance.
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06/11/2005 06:31:34 AM · #47 |
Hi Mike,
Wow, it looks like your post has generated quite a lot of responses! There are some great suggestions here, but remember that free advice is sometimes worth what you pay for it (this applies to the advice I'm about to give you as well). In any case, here are a couple more things you might want to be aware of.
Befire beginning any type of collection activity, be sure you understand your client's rights, and your responsibilities, under the Fair Debt Collection Practices Act, and any relevant statutes in your clients' state of residence. These laws limit what actions a creditor (that's you) can take to collect a debt.
As an example, FDCPA says you cannot make collection calls at 2:00 in the morning, and you cannot contact your client by telephone after they have instructed you not to do so. Contacts to third parties (except those who have co-signed or guaranteed the debt) are limited to location inquiries only. You may not disclose to the third party that you are attempting to collect a debt; you can, however, state that you are Mike Lewis from So-And-So photography and are attempting to reach this person regarding a personal business matter. Violations of these laws may invalidate the debt, or limit your right to collect.
Also be aware that prevailing in court does not guaratee payment, so don't expect to walk out of the courthouse with your $300. The judgment does give you the ability to pursue actions such as property liens or garnishing wages, should you choose to go that route -- but it is your responsibility to do so. Also, if your customer were to file bankruptcy, the debt and any liens would be discharged, so all would be for naught.
Credit-bureau reporting is an option, but if you plan to go that route, send your client a letter and call them warning them of this first. The threat of (probably another) black mark on their credit may help secure payment. Also be aware that if the customer disuputes the listing of the debt with the credit reporting agency, you may be required to prove the validity of the debt -- a difficult task without a signed contract.
If you are a cash-basis taxpayer (if you don't know, you probably are), you are not entitled to a write-off of a bad debt. Cash-basis taxpayers can only take a deduction for bad debt in cases where they loaned out cash (which was previously reported as income) and it was not repaid. Accrual-basis taxpayers would be able to deduct this, because they would have reported the $300 as income at the time of service. In that case, the bad-debt writeoff effectively "undoes" the taxation of the income that was reported but never received. Since a cash-basis taxpayer would not have paid income tax on this, there is no taxation to "undo," and thus no deduction is permitted.
Finally, please remember that all of the above is just my opinions. I am not an accountant or a lawyer, so you take my advice with a grain of salt.
-Terry
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06/13/2005 06:25:31 PM · #48 |
Thanks All for you awesome advice. I'm not sure at the moment, but im sure with all these great sugestions, i'll get the money owed to me....Thanks!!!
- The Q |
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