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Fraudulent use of illustrations

 
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melanie
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PostPosted: Mon Oct 20, 2014 12:02 pm    Post subject: Fraudulent use of illustrations Reply with quote

Hi,
I would grateful for any advise on the following:- I recently illustrated a book for a friend who was trying to publish a children's story book herself, so I agreed to help her out on the basis of free advertising for myself and payment only if the book sold well on the high street. I allowed her to have full run of publishing the book and after she printed it I realised she was leaving me out of the advertising and playing down my role in the creation of the work. the book is now currently for sale via several WHSmiths retail outlet, Waterstones, Barretts, Amazon and other place. I found out last week via a letter from a solicitor that she has claimed to have paid me for my work and also she has somehow claimed all rights over some 30 A3 sized illustrations that I did even though I have NEVER signed a contract of any sort or been paid a single penny for my creations. I am in a situation were my husband is due for an operation and he is currently not working therefore it is impossible to employ a solicitor but I am wondering if this situation comes under some kind of fraud as I have a very simple signature to copy and it has been suggested to me by the IP Office that this might be the case if I haven't signed a licence for the work. Does anyone know of how I can either stop the publication or if I will at all need a solicitor if there has been fraud commited? The person who is claiming to own my work has been making profit from the book and also has a massive advertising campaign that is still going. - I would be so appreciative of any input on this matter, thank you.
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AndyJ
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PostPosted: Mon Oct 20, 2014 2:16 pm    Post subject: Reply with quote

Hi melanie,
I'm sorry to hear of your story. It is far from unique, unfortunately.
This is really quite a complicated matter to sort out, and you would be well advised to get some proper legal advice, especially as the author appears to be using a solicitor. If you can't afford a solicitor then the Citizen's Advice Bureau should be able to help. That said most solicitors will provide a free initial consultation during which they can explain the likely cost to you of engaging them to handle your case. It is quite possible that the harsh reality is that you could spend more than you stand to gain. It will be stressful and take time. Only someone with all the facts can advise you on that.
In order that you can go into a consultation with some relevant questions to discuss, here is a brief overview of what I think is going on here.
First of all, I am not sure that what has happened to you can necessarily be characterised as fraud. It would appear to be a case of possible breach of contract, but due to the lack of any written contract, it will be messy to resolve, since it is in essence your word against hers. The problem with allegations of fraud or deception is that of being able to prove the other person acted intentionally to defraud, and was not simply mistaken about her understanding of the arrangement between you. Clearly if the author has forged your signature then, if it can be substantiated, that would be proof of an intention to defraud. You don't say if she definitely claimed to have a document (either an agreement or a receipt) signed by you, or whether this is your supposition based on the contents of the solicitor's letter. If you are sure that your signature has been forged then you will definitely need to get proper legal advice since that would be a criminal matter. If the forging of your signature was to be proved, you would then be able to get a court of declare the previous contract void (due to deception and/or misrepresentation by the other party) and you would be able to claim damages for your losses.
On the civil side, there is the matter of breach of contract. That is to say you maintain you only did the work and provided a verbal licence for the artwork to be used on the understanding that you would get both a credit and a share in the proceeds of the sales, and this has not happened. A court could fairly easily accept that, even in the absence of a written contract, such an arrangement would be a reasonable one in the circumstances. But, if the author can somehow show that she paid you (as she now claims) for your work, that would change the nature of the supposed contract to a straightforward commission for the work, and the onus would fall to you to show that you weren't paid.
Unfortunately as things stand there does not appear to be a good case for infringement of copyright. This is because in letting the author go ahead with the print run you effectively gave her a licence to use your work, subject to some future payment once sufficient sales had been made. It is a matter for debate as to when you might have expected to receive the royalties. The author could argue that she won't receive her royalties for some time (maybe after a year from first publication). Since there doesn't seem to have been any specific agreement about exactly how much you would get paid, or when, it will be difficult for you to show that the author has failed to live up to her side of the bargain. However the solicitor's letter you mention seems to indicate that the author has no intention of ever paying any royalties. This then takes us back to the fundamental issue of breach of contract, and what exactly was the nature of the contract.
We are much firmer ground over the claim that she now owns the copyright in your work. Assignments of copyright must be in writing, and as you say you signed nothing, the best the author can assert is that she has a licence to use the artwork, and you continue to own the copyright. In reality this is of little comfort because your grievance is more about the fact that she is getting away with using your work without paying you.
Just a couple of final thoughts. You are not entirely clear about whether you were credited. I have assumed from you wording that your name was mentioned somewhere, but not as prominently as you were led to believe would be the case. This then goes back to the breach of contract matter, rather than copyright per se.
You seem to be asking if you can obtain an injunction to prevent further sales of the book. This would be very hard to do and would probably be disproportionately expensive. If you are successful and a court agrees with your version of the contract, then larger sales should mean you are entitled to more royalties.
All of which is probably not terribly helpful to you. As I said at the start, you certainly need some legal advice, if only so you can be aware of the possible costs and benefits involved in going ahead. Whatever you decide to do, please make sure you keep safe any emails or other written materials relating to what was agreed between you and the author. Even seemingly inconsequential emails such as progress reports may be helpful in supporting your side of the story. And if anyone was witness to any discussions between you and the author, make a note of who they were and what if anything they can attest to. You will need as much corroboration as possible to support your side of the story.
Good luck!
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Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007
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melanie
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PostPosted: Mon Oct 20, 2014 3:52 pm    Post subject: Reply with quote

Thank you for your advise. This however is what I feared. There was no original contract as she was a friend and it appeared to be a join venture as she promised me massive advertising told me to write a small bio for the book and assured me of "BIG" money when she got an investor and also asked me to think about my fee for the work. I have over 200 emails expressing this to me as she was mailing me throughout the 3 months instructing me on each illustration as I drew them then once I finished the work I had a family crisis as my father was diagnosed with terminal cancer. She then proceeded with printing the book without consulting me and I had no say in how it was printed, plus my bio not included or the recognition for my work was not clear. She did name me on the second page as "illustrated by" but in the acknowledgements she mentions 2 other artist and implies that I finished off their work in the book. She then became secretive and arranged press releases and TV and interviews without me and when I questioned her she simply said that she wasn't able to contact me and I was available so it was my fault. I was very exhausted by it all as my father was going through tests and so forth so I wasn't easily available and I just left her too it because it wasn't as important until May time when she employed a marketing team and suddenly she wanted to pay me for my work. She then offered me £250 for my drawings but I could only have it if I signed the contract that her and the marketing team had draw up, I refused and left empty handed. From what I can tell from contacting the solicitor she must have signed the contract and is saying I was paid £250 as the solicitor has no reason to doubt her and he is only acting on the evidence given to him by his client. I have contacted 2 solicitors and it is impossible for me to pursue this as I have no income at present due to my husband operation he is waiting for. I am simply stunned that I have done nothing wrong and I am now being told I can't display my own work on my own sites or use them in anyway, plus that someone is making money out of my work that I did and declaring it to be theirs. I'm just so at a loss that I can't stop this from happening, I've can't even going in to my local town without seeing the book in shop windows! There appears to be no justice for the Artist with no financial backing and this whole incident has forced me to cease trading as an illustrator artist. I simply can't afford a solicitor so therefore I will probably never be credited for my illustrations in the book......I am very disappointed in the justice system :/
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AndyJ
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PostPosted: Mon Oct 20, 2014 6:04 pm    Post subject: Reply with quote

Hi again melanie,
You are clearly distressed by this business, and given the other things going on in your life, I can only advise you to try and be as realistic as possible about the likely economics of what might lie ahead.
I have no idea what figure you have in mind as fair compensation, but I think you would be looking at possibly 4 times the amount you were offered, in terms of legal costs. Now it might be that if you were successful in bringing a case, you would get those costs back, but if you lost the case you would probably end up with the other person's costs awarded against you. If you are unable to get free advice from Citizen's Advice, or negotiate a contingency fee arrangement with a solicitor, then it would extremely risky going forward, however unfair you think it is.
The one cheerful thing I can say is that, there is no reason why you cannot display your work on your website. Since you claim not to have signed any document which assigns copyright in your work to the author, you retain ownership, and it would be up to her to take you to court if she thinks otherwise. Given that she must know that a court case would bring to light her forgery, would she be prepared to risk that? And of course you can make it clear on your website that these illustrations appear in her book (although you may not wish to give her any additional publicity).
I hope you won't give up working as an illustrator, and that having learnt this expensive and painful lesson, next time protect yourself with a contract for providing your services. It needn't cost a lot. See here, here, here and here.
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Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007
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melanie
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PostPosted: Tue Oct 21, 2014 6:34 pm    Post subject: Reply with quote

I am very distressed by the whole thing as it is affecting my family at this time I could do without having to deal with it. The compensation isn't really the main issue it's the book it self. All I want is the book to stopped as the person who has falsely claimed ownership of my work is using every way possible to get media coverage for the book in a bid to get the story on to children's TV without concern to me and my situation. I don't care about the money at this present time because I just want the book to be stopped. I had been ignoring it until I got the solicitors letter but now I am eager to try and find the easiest and quickest way to put it behind me and focus on my family I just can't believe that someone can do this and I can't do anything about it due to not having the funds. I was hoping that I could at least get the publication stopped due to her saying she paid me but it's clearly not as easy as that. I think though as you have said my best option is to carry on displaying my work thus forcing the solicitor to take it further as she will never be able to produce proof of payment. Anyway I would like to thank you for your guidance and advice I am very grateful. Melanie
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