Withheld Payment: Can I Fight A Magazine Publisher To Get It Back?

A colleague of mine sent me a troubling question: “Dave, I recently sent a
article in a magazine I have worked with for a few years, and they accepted it without
I eat? ‘Or what. A month passes and I have been paid 1/3 of the agreed fee,
claiming that his staff had to completely rewrite it before publication and that
cost came out of my reward. That seems really unfair – is there anything that can
do about it?”

To clarify the issue, I asked my colleague to send me a copy of the article.
letter of assignment, which is basically a contract between the author and the
editor who should – one hopes – detail exactly what is to be delivered and all
possible contingencies, including receiving a manuscript that is not publishable.

However, before looking at the wording of the contract, the strange thing about this situation is
that the author never had a chance to fix the article or even any comments
saying there were no problems at all. He seems a bit suspicious…

Receipt of Contributions

Editor reserves the right of final approval of both the form and the content
of each author’s contribution. Editor you can, as you estimate
appropriate, adapt and edit or authorize the adaptation and editing of each
contribution. Editor you may or may not post a contribution on your own
discretion.

So far, that’s pretty typical. Please note that there is no mention of the possible cost of
adaptation or edition in this clause of the contract. Let’s continue…

I pay

In consideration for the services rendered by the Taxpayer hereunder and the rights
granted and assigned hereunder, Editor agrees to pay the Taxpayer,
subject to the terms hereof, an amount as set forth in Schedule B.

Again, that’s pretty straightforward. The question is, what is actually written in
Exhibit B and what type of “death fee” is listed, if any. And here is the final clause, in
Exhibit B, which blows a hole in any kind of argument the editor might have
with the author:

Payment of each contribution will not be made until such contribution has been
approved for printing in the magazine. In case a contribution is not accepted
by printing, the taxpayer will not be entitled to payment.

My reading of this is that it is an all or nothing contract. There is no legal provision
which gives them the right to withhold partial payment for any reason: either the
the terms of the contribution are met as detailed in the Schedule, or are not met, in which
case “the taxpayer will not be entitled to payment”.

If the difference is more than a small amount, I suggest you call
the publisher and say that after further reading of your contract, you don’t see
that they have some basis for withholding 2/3 of your pay and that you would like
see a check issued for payment of the balance of the item immediately.

And you would also consider finding a new publisher for your articles.

Please note that I am not an attorney and this should not be construed as any form of legal advice. Please continue with my review and comment at your own risk. Thanks.