If you’re a freelancer, you know the drill. “Hey there, just following up once again on my last email regarding my invoice,” is a message self-employed creatives and artists are typically far too familiar with sending. When you are your own business instead of an employee on someone else’s payroll, the unpredictability of getting paid is a real concern.
Across the creative industries, it is an unfortunate reality that big companies and agencies bank on the little person not having the resources or know-how to fight to get paid if things get complicated. Being ghosted sucks in any context, but it stings a little extra when it affects your bag. No matter how big you get, it is a problem that concerns all creatives (remember Telfar x GAP?).
So, what can you do if you still haven’t been paid? Here’s our guide to best practices when dealing with an unpaid invoice and non-responsive client.
First: Collect information.
Information is power, and hopefully you’ve got yours in writing. Gather copies of any communication regarding your payment and collect it in a folder. Save PDFs of emails and screenshots of texts. If you signed a contract, revisit the terms specified in the agreement. Double-check that you did all you were expected to do to get paid: did you sign the contract? Did you send an invoice with the correct information? Did you submit tax paperwork? Did you deliver the final product?
Review the payment terms originally agreed upon and check if there was a timeline specified. Larger companies will often pay their vendors net in 30, 60, or 90 days, which means it could take up to 3 months for your invoice to be processed. If you’re having trouble getting a client to pay, make sure you’ve done all you need to do and collect written records that you’ve done so. If things escalate, you’ll be ready.
Second: Is it time to get a lawyer?
Once you’ve collected all of your records to show that you did your job in full, consider a few important questions.
How much money are we talking? Are you owed $500, $5,000 or $50,000? Depending on where you live and the amount in question, you might be able to file a demand in Small Claims court, without a lawyer. The website for the local court in your area might have a step-by-step guide for filing or contact information for a Small Claims advisor. Do your homework.
What is the level? Is this a small business based in your city that handles all of their payments in-house, or a big corporation with a large accounting department and headquarters in another state? Figuring out where your client is based will help determine your rights related to overdue payments and where you would file a possible suit. If you signed an agreement, look for a clause towards the end that specifies it “will be governed by the laws of,” and that will clarify what rules apply.
What is the true cost to me? Did you front costs for supplies or hiring others? Did you end up doing more work than you agreed to in writing? Will you need to hire a lawyer to help escalate? How much admin time have you spent following up or sending invoice reminders? Collect copies of invoices and notes on any other hidden costs. Consider if these additional costs may need to be included on top of what was originally agreed upon or invoiced.
The context of the problem and what you hope to get out of it should inform how you contact the client.
Before getting a lawyer involved, take full advantage of all channels of communication to reach your client. Send emails to your point of contact. Send emails to the accounting department, owner, or director. Give their office a call or DM on socials. State clearly in writing 1) how much you are owed, 2) when it should have been paid by, 3) who you were last in touch with, and 4) set a firm deadline for response with an update on the status of your payment. Some creatives have even found success in the court of public opinion by calling out bad actors on social media.
If you have tried all possible channels of outreach and are still not receiving a response, it may be time to stop fighting this on your own.
Third: I’m ready for a lawyer, what now?
A letter from a lawyer can pack more punch than an email from an independent artist. It also shows you are serious. When you’re still waiting to be paid for work you’ve done, attorneys will typically start by sending a “Demand Letter.” This letter is a formal way to ask for what you are owed and set some terms for what will happen if they don’t pay you what you are owed.
Generally, you don’t want to send a letter threatening further action unless you’re prepared to back it up. Be sure to discuss what your other options may be with the attorney and ask questions about the legal fees and court costs associated with the next steps in escalating.
If you’ve done all you can to get paid, a lawyer sends a Demand Letter on your behalf, and if you still haven’t been paid, it is time to consider filing a lawsuit against your client.
As mentioned before, Small Claims courts allow you to file lawsuits without the help of a lawyer. Usually this is capped for amounts under $5,000-$10,000, so if you’re owed more than that, it might make sense to file a claim in civil court. Sometimes just filing a claim will show the client you’re serious, and lawsuits can be settled without having to go all the way to trial. Lawsuits can get expensive, so the best defense for these types of situations is offense and preparation — avoid this from the get-go.
Fourth: What can I do to prevent this in the future/protect myself before this happens to me?
Contracts. Put it in writing *before* you start working on a project. In a written agreement, you can include important details on exactly what you are going to do and how you will be paid. Keep in mind a few key terms:
Scope of Work: A clear SOW helps everyone have a better understanding of the project. This can include your deliverables or what commitment is expected of you. It is also helpful to include a timeline and key milestones, including deadlines for drafts and revisions, release dates, or any key cut off points — especially if you are depending on your client to provide tools or approvals you need to do your job. Discuss what happens if the client asks you to do more work than originally agreed upon or if key details to the project are changed once work begins. Negotiate for additional payment before you agree to these changes.
Payment Schedule: As discussed above, large companies will often pay their vendors with net 30-, 60-, or 90-day payment schedules. This can mean it takes months for you to get paid. However, there is always room to negotiate. Consider if you will have to spend money on materials or hiring other vendors out of pocket. Ask for a deposit paid upfront, and the rest once you finish your job (50/50 is a common split). Ask your client how their accounting department works: how often do they process invoices and send payments? Some companies only send out payments once a month. Do you need to enroll on a vendor or payment portal? Some companies require you to register with their system which can delay your invoice being processed. Make sure you know these details before you begin work.
Kill Fee: What happens if the client cancels the project after you’ve started working? Be sure to include some terms for what you are paid if this happens. It is common to pay between 50-100 percent of the agreed upon fee if the project is cancelled by the client through no fault of your own. Consider setting key milestones that require a different level of kill fee. For example, you could ask for 50 percent if the project is cancelled at least 1 month before the final deadline, but 100 percent if it is cancelled one week before.
Even if you are unable to secure a longform contract, at least get written record in an email of how much, when, and how you will be paid.
If you are not in the United States, your options will vary based on the country that you or your client is located in, but for the most part, similar principles apply. For example, the European Union has a Small Claims Procedure for claims up to EUR 5,000 in any EU country (except Denmark). While you don’t need a lawyer, you will have to cover a court fee and translation costs, which may be reimbursed if your case is successful. Nevertheless, just as in the US, the best defense is offense, and having as much of the agreement in writing and protecting yourself from having to escalate the matter is the best approach to getting paid. Deposits and “kill fees” are your best friend. And as accounts like @DietPrada have shown, social media can be just as powerful a weapon as a lawsuit.