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advice on collection measure
Thread poster: Susana Galilea
Susana Galilea  Identity Verified
United States
Local time: 02:50
English to Spanish
+ ...
Oct 13, 2005

Hello all,

I am considering my options in the face of a job that has gone unpaid for over 6 months. The client stopped replying to my messages a few months back, and my phone calls are routed to the company's voice mail. I have been sending reminders every month, including late payment surcharges, but obviously this is a dead end. The copywriter I collaborated with on this project did not get paid either, nor did the graphic designer. The client in question is a marketing company, and the name of the final client appeared in the brochure I translated. I am considering contacting the CEO of that company (the final client, that is) to inform him of the situation, in the hopes he will intervene. Also, to the best of my knowledge, the copyright remains mine as long as I have not been paid, and therefore any use of the brochure would not be legit. My question is, are there any legal implications I should be aware of? Is it safe to contact a client's client in such a situation, or would I be subject to any liability? The amount I am owed is not large, but I consider following up on this a matter of principle.

Thanks much for any and all input.

Susana Galilea / Accent On Spanish
Accredited Translator, EUTI / UAB
sgalilea@ispwest.com
www.accentonspanish.com


[Edited at 2005-10-13 00:16]


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Trudy Peters  Identity Verified
United States
Local time: 03:50
German to English
+ ...
For starters... Oct 13, 2005

... I would leave a message on your client's voicemail threatening him with contacting his end client if no payment -- or at least a satisfactory response -- is forthcoming within one week or so (pick your own timeframe.)

That strategy has worked for me before. If you don't hear from your client within that time, I would not hesitate contacting the end client.

Good luck!


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Sara Freitas
France
Local time: 09:50
French to English
Susanna, contact a lawyer. Oct 13, 2005

I would contact a lawyer first. Then you can move forward with peace of mind, knowing that you are fully within your rights.

I hate when this kind of thing happens. In France you are allowed to go to the end user of the material under certain circumstances. My husband is a purchasing project manager and even after his in-service legal training (which he passed on to me) the issue is so sticky that I would definitely seek legal advice before proceeding.

Good luck and please keep us posted on the outcome!!

Sara


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Heike Behl, Ph.D.  Identity Verified
Local time: 00:50
Member (2003)
English to German
+ ...
work for hire Oct 13, 2005

Check out this site whether "work for hire" might be applicable in your case. If yes, then you don't own any copyright.
http://copylaw.com/new_articles/wfh.html

I had one client who indeed had a clause like this in their contractor's agreement.

Also, if you signed at any time an agreement with this client in which you agreed not to contact the end clients and you do it now - no matter under what circumstances - that would be considered a breach of contract.

Have you considered a collection agency? Or filing a complaint with the Bureau of Better Business?


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ntext  Identity Verified
United States
Local time: 02:50
Partial member
German to English
+ ...
@ Heike Oct 13, 2005

Heike Behl, Ph.D. wrote:

Check out this site whether "work for hire" might be applicable in your case. If yes, then you don't own any copyright.
http://copylaw.com/new_articles/wfh.html



The question though is not whether translation is work for hire (obviously it is) but whether the client owns the work under the given circumstances (i.e. non-payment).


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Heike Behl, Ph.D.  Identity Verified
Local time: 00:50
Member (2003)
English to German
+ ...
reply to Norbert Oct 13, 2005

Norbert Gunther Kramer wrote:

Heike Behl, Ph.D. wrote:

Check out this site whether "work for hire" might be applicable in your case. If yes, then you don't own any copyright.
http://copylaw.com/new_articles/wfh.html



The question though is not whether translation is work for hire (obviously it is) but whether the client owns the work under the given circumstances (i.e. non-payment).


No, Norbert, a translation is only considered work for hire if it is explicitly defined as such in a PO or agreement. At that point, I don't think it makes any difference whether the client pays for it or not. They still owe you the money, but they own the copyright. Just as it is the other way round: Even if the person who ordered the work (translation) pays for it, that doesn't mean they automatically have the copyright. This is also mentioned on this site and that's why they recommend them to always include the work for hire clause in their agreements with contractors.


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Susana Galilea  Identity Verified
United States
Local time: 02:50
English to Spanish
+ ...
TOPIC STARTER
no agreement Oct 14, 2005

Heike Behl, Ph.D. wrote:
Also, if you signed at any time an agreement with this client in which you agreed not to contact the end clients and you do it now - no matter under what circumstances - that would be considered a breach of contract.



I didn't sign any contract in this particular case, which is unlike me. Typical blunder involving squeezing in a rush job before leaving for a vacation, on the recommendation of a colleague (the copywriter) who had it on good source (the graphic designer) the client was a slow but reliable payer. The lot of us have yet to see a penny, which is obscene in my book.

My standard agreement stipulates the copyright belongs to the client once the job has been paid for. Also, I was under the impression the rule about not contacting final clients was limited to offering our services directly to them. Am I mistaken? I am researching whether my client belongs to a Chamber of Commerce I could contact, and the BBB might be a good idea. I entered them in the Blue Board, but I doubt that would make any difference as they do not post jobs. The amount I am owed isn't worth getting in any trouble for, so I am grateful for all the advice received.

I suppose eventually I might just give up, but hey I'm a Taurus

S.G.

[Edited at 2005-10-14 06:17]


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Heike Behl, Ph.D.  Identity Verified
Local time: 00:50
Member (2003)
English to German
+ ...
Why would a company represent your interests? Oct 14, 2005

I don't think that unless you have a personal relationship with the end client and they would help you as a personal favor that they really care what happens at your end. They ordered the translation and received it. Period. I can't imagine any company getting involved in a dispute that has nothing to do with them directly, unless they themselves are unhappy with that agency's services. The larger the end client, the less likely that they would help you.

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Susana Galilea  Identity Verified
United States
Local time: 02:50
English to Spanish
+ ...
TOPIC STARTER
back to the copyright Oct 14, 2005

Heike Behl, Ph.D. wrote:
I can't imagine any company getting involved in a dispute that has nothing to do with them directly, unless they themselves are unhappy with that agency's services.



This is why I wanted to clarify whether the copyright could be a factor in this case. If the end client does not own the copyright to the translation because of non-payment, and therefore is not allowed to use the material at will, I would assume they would want to do something about this situation.

Thanks all,

S.G.


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Heike Behl, Ph.D.  Identity Verified
Local time: 00:50
Member (2003)
English to German
+ ...
Choose your battles carefully Oct 14, 2005

Susana Galilea wrote:

This is why I wanted to clarify whether the copyright could be a factor in this case. If the end client does not own the copyright to the translation because of non-payment, and therefore is not allowed to use the material at will, I would assume they would want to do something about this situation.

Thanks all,

S.G.


Going down the copyright road might mean getting involved in a legal battle. I would definitely get legal backup from a lawyer so you know exactly what your rights and your limitations are.
You'd also be attacking an innocent bystander, so to speak. Convincing them to cooperate with you and not to sic their expensive lawyers on you might be rather tricky. Think about the possible time effort and stress (and also costs) that most likely would be in store for you. You said the amount they owe you is not that large - is it really worth it "only" to get your personal satisfaction you didn't let the agency get away with it?

I once got advice from a lawyer regarding a breach of contract from an employer of mine (not translation related). And although he said that the law would be 100% on my side, he strongly advised against taking them to court. They have all the power, money, legal finesse to tie you up for a long time, trip you up on some technicalities etc. So you'd need to hire a lawyer (and you know how much they charge per hour) to be on even ground with them and be willing to take the risk to be the one left with all legal costs to pay.

But I used that knowledge to argue my case and my employer finally gave in. But in my case, my employer was the agressor, trying to scare me into accepting a new contract that was much less advantageous for me than the one signed previously. In your case, you'd be the agressor and as such have to be prepared to follow through.

What will you do if the end client replies to you: 'Well, we paid for it; we've done nothing wrong. So feel free to talk to our legal department.'

Also, if you start a legal battle with the end client regarding the copyright, this would most likely be considered a separate issue from the agency not paying you. As the quoted article states, payment does not transfer the copyright. Unless it's a work for hire, the translator still holds the copyright even after being paid. So you'd be fighting with the end client who is not the party you actually want to fight with, and the agency still would get away with it.

Why not check with a lawyer about your legal rights regarding the non-payer and threaten them with all legal remedies at your disposal instead?


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Susana Galilea  Identity Verified
United States
Local time: 02:50
English to Spanish
+ ...
TOPIC STARTER
Thanks, Heike Oct 14, 2005

Heike Behl, Ph.D. wrote:
Also, if you start a legal battle with the end client regarding the copyright, this would most likely be considered a separate issue from the agency not paying you. As the quoted article states, payment does not transfer the copyright. Unless it's a work for hire, the translator still holds the copyright even after being paid. So you'd be fighting with the end client who is not the party you actually want to fight with, and the agency still would get away with it.



I have no intention of getting enmeshed in a legal battle. I was under the impression the copyright clauses were pretty straightforward in case of non-payment, but I guess that is not the case. Glad I checked with you all.

S.G.


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Heike Behl, Ph.D.  Identity Verified
Local time: 00:50
Member (2003)
English to German
+ ...
Frustrating Oct 14, 2005

Susana, I know from experience how frustrating your position is. Luckily, so far I've always been paid in the end. Keep bugging them by e-mail, phone calls and registered letters to let them know you're not going away.

Good luck!!!


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