Never received contract

This is not in the right forum to receive the help you are looking for. But don't repost as this will likely be moved for you in a little while.

You should have signed a contract that specified payment well before the story was published. This is out of my league to help you fix this problem, but in the future, a contract should be offered in the same exact correspondence as the one that expresses interest in publishing your story originally.

Nexus said:

You should have signed a contract that specified payment well before the story was published. This is out of my league to help you fix this problem, but in the future, a contract should be offered in the same exact correspondence as the one that expresses interest in publishing your story originally.

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I'm concerned that you emailed your contract twice and never received a reply. Or did you mean you emailed asking about the contract? I wasn't clear on this.

What rights was the publishing company asking for in the contract? Did they mention payment?

I would send a polite email to the editor explaining your situation. If that doesn't work, you might want to consult a lawyer and send a more sharply worded letter about copyright.

Have you tried contacting them via other means (like a contact form on their website, if there is one)? Or via another e-mail account, in case a spam-trap is catching your e-mail?

Also, it might be worth contacting Writer Beware (beware-at-sfwa.org) to see if this has happened to other folks. Or search the index of the bewares, recommendations, and background check forum to see if the publisher is listed and what the comments are.

Yes, if you have a way besides e-mail to contact them, you should use it asap.

As for payment, most (if not all, I can't think of any that don't) reputable venues mention their pay rates in their guidelines. I personally would never submit to a short story venue that didn't. You may have submitted to a non-paying venue, which means you aren't entitled to any payment. However, payment is a point that would have been clear in the contract. They should not have published your story without one as it can create massive legal issues for both parties.

If you can't get ahold of them, I second the suggestion of contacting Writer Beware.

Something is decidedly wrong here. Under no circumstances should they have published the story without having a signed contract. A contract that comes after replication is useless.

you might want to check on duotrope or the magazine webpage to see if they pay and how much. It sounds like it might be no pay.

I'm an IP lawyer. It seems to me the contract is more for the publication's safety. If we don't sign something about a story we own it, absolutely. That means you could probably demand something from them for the slip up. They published w/o the right to do so- there is no defense in the copyright law, and there are statutory damages. Of course, it might be a fight to get "blood out of a stone." Plus, you might piss off a publication you'd like to publish in again (plus piss off his friends).

Some of the more experiences writers may know something I'm missing on the contract, but I think all you're out is whatever $$$$ you would have been paid.

Whether they sent it to you or not, they published your work without your consent. For all they knew, if you had received the contract and not returned it to them signed, it was because you'd changed your mind or didn't like the content of the contract and didn't want to agree to those terms.

Can you name the publisher in question? You hardly made a case for defamation, so there is no reason for us not to know the name. You could also type their name with characters so that google doesn't pick the name up in searches.

trgrouse said:

Update #2: I replied to the last email, politely but firmly, stating, again, I never received a contract, that they published without permission, and that their last response was very terse.

I received a follow up from them that was somewhat apologetic, saying they would mail the contract.

Look, I know they messed up and I am not happy about it, but I have no money to sue them and even if I did it would not be worth it financially. What would I get? They are a very small publishing company.

Therefore what should I look for in the contract? Rights to publish the story and thats it, correct? As I mentioned, in the anthology itself it states that all authors keep their individual rights to their stories.

Thanks for all the advice so far.

Tim

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again, I don't see any reason to sign a contract at this point. I do not think you get anything from that.

Regardless of whether you'd have received payment or not, they still published something you own without your consent. I know you're willing to 'forgive and forget' (by the sound of your last post), but who's to say this hasn't been done to other writers also? Please could you supply the name of this company so other writers do not burn their first rights to publication on this company?

Yup, I wouldn't want to burn first rights on these guys, and whether they meant to do you wrong or not, this does not speak well for their trustworthiness or for them taking writers' concerns seriously.

I mean, honestly, you shouldn't have had to point out to them that they were in breach before you got an apology.

BunnyMaz said:

Yup, I wouldn't want to burn first rights on these guys, and whether they meant to do you wrong or not, this does not speak well for their trustworthiness or for them taking writers' concerns seriously.

I mean, honestly, you shouldn't have had to point out to them that they were in breach before you got an apology.

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Very true. Have you contacted Writer Beware? They may have some further suggestions on how to proceed.

Also, as a short story writer, I'd like to know the name of this company. Someone suggested contacting Duotrope. I think that's a good idea too.

BunnyMaz said:

Yup, I wouldn't want to burn first rights on these guys, and whether they meant to do you wrong or not, this does not speak well for their trustworthiness or for them taking writers' concerns seriously.

I mean, honestly, you shouldn't have had to point out to them that they were in breach before you got an apology.

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but the writer WANTED them to publish it and would have signed the contract if he got it AND he is happy with publication. This would be something quite different if the above weren't true, but given that it is true I don't see why the writer should feel bad.

The writer doesn't need to feel bad, it is still unethical and unprofessional to publish someone else's work without their written consent -- what does 'yeah, but he woulda' mean? I don't care if he feels bad or not, the actions of the publisher were wrong and illustrate a distinct lack of competence. I would like to know who they are, because I don't want to be represented by incompetence or unethical practice should I submit my work... and I would like to know how my work is being used both in and after publication, without a contract these rights and aspects are unknown. I may very well loose my work forever as has happened to many writers who received a contract but didn't read the bloody thing, let alone those who never had one.

It's a simple service to fellow writers who'd like to know where they stand with a publisher

kborsden said:

what does 'yeah, but he woulda' mean?

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the magazine may be slopy as all get out, but the writer wasn't harmed here. He is happy they published his story. that isn't to say the next guy might have been thinking about whether he wanted his story published, and then it was published. but that isn't what happened here.

. I would like to know who they are, because I don't want to be represented by incompetence or unethical practice should I submit my work... and I would like to know how my work is being used both in and after publication,

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OK maybe he will tell you.

without a contract these rights and aspects are unknown. I may very well loose my work forever as has happened to many writers who received a contract but didn't read the bloody thing, let alone those who never had one.

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actually w/o a contract his rights couldn't be clearer, or stronger. it's only limited by practical factors about suing some fledgling mag.

It's a simple service to fellow writers who'd like to know where they stand with a publisher

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again, if he wants to tell you, God Bless, but the tenor of these posts is that he got robbed and I just don't see how he did. That doesn't mean someone who doesn't want his work published wouldn't have been harmed, just that this guy doesn't appear to have been,

The point is that things were not done as they should be done by a professional who is handling something as delicate as copyrighted material.

He hasn't made it clear if the company promised pay or if it was a free market.

What is clear is that the magazine failed to do what a professional company should do - which is to own rights to content that they are making money off of.

It doesn't matter if his career or work was harmed in anyway - that is a flimsy justification for breaking the law. If I posted a picture that someone else took or made, without their full consent and understanding of what I would do with it - then I wouldn't expect to be sued. I'd expect to be asked to take it down or justify putting it up, ie - getting their permission before re-publishing the picture on my website.

Even if I give them credit for the picture on my website, that doesn't give me the right to have it there without their permission; period.

Nexus said:

things were not done as they should be done by a professional who is handling something as delicate as copyrighted material.

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and no one is disagreeing with you.

sometimes companies screw up- that's why they built them big courthouses in most cities- it can happen with the biggest most established company.

and a company screwed up here, but I took the OP to be asking what he should do now to protect himself.

I wouldn't try to punish them for their screw up. The contract will either say they pay something or they don't. If it wasn't for payment, there's no harm done. If the contract says they will pay, then you should get paid. If they don't pay you then you have a gripe.

Until and unless you have already signed the contract, you don't have a clue what it says, whether harm has been done, or even if it will be the same contract you talked about.

Nor do you have all rights to your story. If they published it, first rights are now gone, potentially for zero payment.

Nor should you should ever have to wait for a contract to know how much you're being paid, what rights are wanted, etc. Any professional, legitimate publisher will state these long before you ever see a contract. You should, in fact, know this before you even submit a piece. The contract is just verification, a time when you agree in writing to what has already been stated.

You should never allow anyone to publish anything before you know how much it pays, and exactly what rights you're parting with. A contract that comes after the fact can say anything, and you have essentially already agreed by allowing the publisher to actually publish the piece.

This is more than simply being sloppy, and it's more than simply being unprofessional. It's a matter of the law, and even of the writer's potential loss of copyright.

Nor are rights at all clear without a contract. Agreement to allow publishing can also mean agreement to whatever terms the contract states, whether signed or not.

Bad enough not sending the contract before publishing a piece, but not being certain the writer knows payment, if any, and rights wanted, long before publication, is not just sloppy, it's criminal. Legitimate publishers of any type state both these things in submission guidelines.

I haven't even touched on scam anthologies, and many anthologies are scams. These, in fact, are the ones who often deliberately withhold a contract until after a story, poem, or whatever is published. In doing so, they have first rights, they make money from the story with every sale, and can send any type of contract they like. Whether the writer signs or not, they make money.

At best, this is a place for writers to avoid completely until and unless they get their ducks in a row.