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If you are worried about infringement or your work has been copied and you want to take action.
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AndyJ
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Post by AndyJ » Wed Apr 06, 2011 4:51 pm

Shaun,
I have to say you are showing the patience of a saint with these people. They seem to be under the impression that you have to prove your claim to them at this stage. You do not. You have asserted your claim to copyright and it is up to them if they feel aggrieved to test your claim in court. You did not de-activate their site; you merely asked for the infringing image to be removed. If their hosting service chose to take the whole site down, then iwrite's immediate grievance lies with the hosting service.
Anyway, since you have gone to these lengths, I sincerely trust they will see the futility of their position which rests entirely on undermining your claim to copyright.
Just to be clear, I think there can be no dispute that assuming your wife is the legal heir to her grandfather's copyright in the painting, she has the capacity to authorise you to make a photographic copy. So let's look at the UK law on the ways in which copyright may be transferred between owners.
Section 90(1) of the CDPA 1988 says:
90 Assignment and licences.

(1) Copyright is transmissible by assignment, by testamentary disposition or by operation of law, as personal or moveable property.
Furhermore since the painting was not published during the artist's lifetime, section 93 also applies:
93 Copyright to pass under will with unpublished work.

Where under a bequest (whether specific or general) a person is entitled, beneficially or otherwise, to—

(a) an original document or other material thing recording or embodying a literary, dramatic, musical or artistic work which was not published before the death of the testator, or

(b) an original material thing containing a sound recording or film which was not published before the death of the testator,

the bequest shall, unless a contrary intention is indicated in the testator’s will or a codicil to it, be construed as including the copyright in the work in so far as the testator was the owner of the copyright immediately before his death.
It appears from the details you have already provided that even without the evidence of the wills (ie if intestacy had occurred at any stage) the normal operation of the law would have resulted in the painting and the copyright in it being passed down in much the same manner as you describe, that is to say down the blood line within the family. It would be very hard to see how any other claim to the copyright in the painting could arise. Indeed I suggest that in the face of documentary evidence you hold, the only thing which could trump that would be an assignment signed by the artist before his death transferring the copyright to someone else. Clearly if he done that, it would not then have formed part of his estate to be passed on as directed by his will. But no-one has seriously suggested that occurred, so I think we can assume that a court would have no difficulty in upholding your wife's claim both to title in the painting itself and the copyright attached to it, along with any other copyright work of her grandfather.
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Post by silverpulser » Thu Apr 07, 2011 1:38 pm

Thanks for that overview Andy. I have written to iwrite again very much along the lines of your comments and added a statement "..With regards to your statement in a previous email "..From now on, we have the right to act against you legally in case you can't prove that your complaints to the hosting company were based on documented legal rights..." I too have the same right to act against you legally and if I bring a claim I will ask the court for aggrevated damages to be awarded in view of the flagrancy of your infringement.

I respectfully suggest that you accept my explanation regarding the copyright of the painting and let the matter rest here..."


As I do not wish to sqaunder my and my wife's inheritances I don't think a claim in the High Court is on the cards (unless a rich well wisher happens to read this forum!). However, what are the prospects of invoicing the publishers for their use of the image and if they refuse to pay then issue proceedings against them to recover the amount owed in the Small Claims Court?

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Post by AndyJ » Thu Apr 07, 2011 3:40 pm

Hi Shuan,
That would certainly be an option if both you and the respondent were based in the UK, but since the dispute - should it go to court - crosses EU borders, I am fairly certain that the county courts (of which the small claims courts are a part) would have no jurisdiction to deal with the matter. You should check* this with you local county court. Secondly even if they do have jurisdiction and make default judgement in your favour, presuming that iwrite will fail to respond to your statement of claim, you still have to enforce the judgement which will not be straightforward. You could end up out of pocket with the, admittedly modest, costs of bringing the claim to court, and then subsequent costs for an enforcement order which would be next to useless if the bailiffs couldn't execute it.
The European Court of Justice has ruled on this subject recently and as long as this was a copyright matter, to be sued in the High Court I think there is no doubt that the British courts would have jurisdiction and the means to enforce judgement via bilateral arrangements. But the essence of the small claim system is quick and easy access to justice often without the need for lawyers on either side, whereas your case would pose significant problems (and costs), especially if your claim was defended at a distance by iwrite.

* You could also check here: "Further information concerning service out of the jurisdiction can be obtained from the Foreign Process Section, Room E02, Royal Courts of Justice, Strand, London WC2A 2LL (telephone 020 7947 6691)"
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Post by silverpulser » Sat Apr 09, 2011 2:26 pm

OK Andy, I'll give that idea a miss then. I have just asked my ex neighbour, a retired district judge, whether he knows if the local County Court has any jurisdiction over EU communities and he was pretty certain that it does not.

I have today received the initial payment from Andreas so I have sent him a message acknowledging reciept and giving him conditional use of the photo. I included in my email to him the following:

"...As far as I am concerned you may now use the image on your cover and inside the book, if desired, as well as using the cover, with the image, on your promotional web site. The licence to use also includes reasonable publicity material which directly promotes the book.
Anybody that is selling the book e.g. Amazon Books, has an implied licence to display the book cover too. It is a non-exclusive licence; that means it applies only in respect of this book and that you may not assign, sell, give or otherwise transfer the licence to any other person or body corporate.

It may be too late to do anything about this edition of the book but if you produce further editions then I would like to be credited as the author of the photo. This may well help should anybody attempt to illegally copy the image from your book.

Although I have said that I allow you to use the photo, the licence will be valid after full payment is received and revoked if it is not..."


Does that sound reasonable?

I am still waiting for a reply from iWrite following my rather terse message to them.

Shaun

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Post by AndyJ » Sat Apr 09, 2011 6:39 pm

Hi Shaun,
I think that licence will probably be OK. It's not quite as legally watertight as it could have been, but given the tenuous link you have with Andreas the impoportant thing is that he understands (and sticks to) it, which might not have been the case if the licence was written in legalese. Let's hope iwrite are equally keen to move forward.
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Post by silverpulser » Sat Apr 09, 2011 7:32 pm

AndyJ wrote:Hi Shaun,
I think that licence will probably be OK. It's not quite as legally watertight as it could have been, ....
Andy, that isn't the actual licence agreement; I have yet to prepare the downloaded template. This was just so that he had a good idea what was likely to be included in the licence and to allow him to continue to use the image whilst paying me in instalments.

I am hoping that the unusual lack of instant response from iWrite isn't the lull before the storm!

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Post by AndyJ » Sun Apr 10, 2011 2:08 pm

OK, thanks for the clarification. Make sure that you use the licence to tightly define what the author can and cannot do with the image in relation to publicity. For example he cannot authorise a third party 'publisher' such as a newspaper or magazine which is reviewing his book to use the image to illustrate their article. That would need a separate licence and a fee to be paid to you.
Also you may need to tidy up the bit about the non-exclusive licence. That means that he will not have the exclusive use of the image and that you reserve the right to licence others to use the image - such as a newspaper or magazine - or indeed another author writing about Cyprus.
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Post by silverpulser » Sun Apr 10, 2011 2:58 pm

AndyJ wrote:... in relation to publicity. For example he cannot authorise a third party 'publisher' such as a newspaper or magazine which is reviewing his book to use the image to illustrate their article. That would need a separate licence and a fee to be paid to you.
Does that mean that he cannot authorise those examples to use the cover of his book if /when reviewing it?

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Post by AndyJ » Sun Apr 10, 2011 5:14 pm

Sorry, my last reply was badly worded; it was supposed to be a suggestion that you might want to consider rather than an imperative! What I was getting at was the avoidance of 'mission creep'. As you indicate, I think a picture of the book cover would be fair (as with the iwrite site or Amazon etc) but not the use of the image itself as a separate illustration. Of course you don't have to put this in the licence for Andreas: you would have a separate claim against a newspaper if they lifted your photograph from Flickr but it could possibly prevent Andreas from (wrongly) appearing to give them his permission to use the image.
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Post by silverpulser » Sun Apr 10, 2011 8:38 pm

OK Andy, I get the idea now. Thanks for the suggestion.

I have had a look at the iWrite web site page that describes the book and the contribution that they made towards it. The following is a Google translation of part of the page. Remember, as a machine translation, this may not be totally accurate but nonetheless is fairly informative:

"..The creative team iWrite assumed the artistic direction of the adoption of carefully prepared book Berengaria: The Hotel of Kings Andreas Chr. Andrew, which was printed in Greece and placed online through the promo-site of the book: http://veregaria.iwrite.gr :
The iWrite undertook the design of the layout of the cover and back cover, the kallechniki (the original word, καλλεχνική, didn't translate in Google but this word offered as an alternative by Google, καλλιτεχνική, translates as "artistic") editing and layout of the interior of the book, processing of photographs in the book, developing a fully functional promo-site (site promotion), and finally participated in online and printed book promotion with strategic moves.......and participating in online and print promotion of books on Cyprus, Greece and abroad.
It also says:
In January 2011 released the Second Edition of Book (1,000 copies), which is now available through selected points and the largest bookstore in Cyprus, and soon will be in selected bookstores in Greece. Furthermore, the author has received several proposals for interviews and presentations from some of the biggest media in Cyprus,such as the tribute "Berengaria: The hotel life from the book, a 19 year old" (newspaper "Kathimerini"). .."

For those that are interested the Google link to the translated page is:

http://translate.google.com/translate?j ... 02&act=url

It is interesting to note that they also say that the image of the book cover includes the text "the first iWrite book ever". Given the location of the text on the cover image I am not sure but I think this means that this is the first iWrite book ever to have been censored!

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Post by six gun » Sat Aug 13, 2011 4:22 pm

I wanted to see the picture this is all about - but it has been censored.

Is it still on Flickr?

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Post by silverpulser » Sat Aug 13, 2011 6:01 pm

six gun wrote:I wanted to see the picture this is all about - but it has been censored.

Is it still on Flickr?
Yes, you can find it at:
http://www.flickr.com/photos/27838561@N ... 268967360/

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