my painting was stolen and used on 30,000 magazine covers!.

If you are worried about infringement or your work has been copied and you want to take action.
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katzabellartist
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my painting was stolen and used on 30,000 magazine covers!.

Post by katzabellartist » Wed May 15, 2013 8:38 pm

A brief lowdown on my problem. I am an artist who has painted various local scenes in watercolour. I keep the originals but sell prints myself of them. The other week a a5 magazine landed on my mat. It is pure advertising with local businesses featured claiming to be a directory of trustworthy business and service providers.

My problem, one of my paintings is gracing the front cover with no credit or mention of me and has gone out to 30,000 households!. Not only that it is on their website and facebook page too.

I have wrote to them expressing my upset and got a message back saying there is no copyright sign attatched to it on my website and because i am not registerd with copyright there is nothing i can do about it!

I have the originals which are obviously signed by me. I also have a copy of newspaper articles of me in a local newspaper with the artwork when they did a small feature.
Are they breaching copyright even though i am not registered?. Is thete anything i can do about this as firstly i am devastated that ive been robbed and secondly they are offering £50 to the next cover designer in the form of a photography competition. would i be able to take them to court at all on this?!.

Thankyou in advance everyone.

Kat

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Post by AndyJ » Thu May 16, 2013 7:19 am

Hi Kat,
This sounds very unprofessional on the part of the magazine producers. They should know that you do not need to register your work to obtain copyright, and secondly that having a copyright notice on the painting is not a requirement either.
You need to go back to them and quite forcefully insist on payment and an acknowledgement in a future edition. The fact that they admit taking this image from your website makes this infringement blatant, and presumably means that they have done this sort of thing before to others. If they prevaricate further, then you certainly have a strong case if you wanted to go to court. However that is is an expensive option (even though if you win you would most likely get your costs paid by the other side) so only one which you should use as a last resort. (Some details here)
If you would like some further advice and support, contact the Design and Artists Copyright Society. It may be worth you joining them anyway, to help protect your work in the future.
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Post by katzabellartist » Thu May 16, 2013 9:29 pm

Thankyou so much. This confirms what i thought deep down and sets my mind at rest.!.

Thankyou once again

Kat

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Post by katzabellartist » Mon May 27, 2013 9:44 am

I am afraid i return for further advice. Since this copyright infringement i have sent numerous emails to the guy who set up this magazine and runs it.

He has apologised and credited me on their facebook page and has agreed to acredit me to the work in the next issue. However with regards to the fee he has said he cannot afford to give me anything and thinks an apology should be enough.

I am reluctant to believe this as they were charging £500 for advertising space in this magazine and local businesses have obviously handed over money, also if it had not been a success i suspect a further issue would not be coming out!.

I have even sent emails saying make me an offer and ' what would you consider to be a fair price?', he has backtracked saying if i want to take him to court i wont get a penny. I keep saying i dont want to take him to court but he is refusing to pay a penny. I think its bad on his part to not even offer something as a goodwill jesture, i am not a greedy person.

But at the same time i feel it has devalued my work and also does not change the fact he has effectively stolen from me.
I am writing this with a view of taking things further, having looked into it i believe i would be going down the small claims track of The Patent County court. I just wondered if yourself or any other members have done this before and what forms i need. Is it an N1 the same as the normal small claims?... also can i stand for myself without a solicitor?, i did not want it to come to this but the guy is not forthcoming.I have said that to him in the last message that he has left me no choice but to take it further. His response was ' see you at the hearing.

Even if i dont see the money, i feel i have to do this, in my heart i cant let him get away with it.

Yours.

Kat

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Post by AndyJ » Mon May 27, 2013 6:48 pm

Hi Kat,
While you are justified in feeling upset by what has happened, you need to be cool and objective about how you proceed. You should certainly not contemplate going to court over an issue of principle without considering some alternatives.
The first point is, what do you think your work is worth? Have you sold other similar paintings either to individuals or for publication which you can use as a basis for justifying what you think this particular usage is worth. Don't try and calculate what it is worth to the magazine (ie what they may have paid others in the past), although it is important to take into account the magazine's circulation, since the amount of exposure could undermine the residual value in the painting to be further licensed. Bear in mind that since you have not given away any rights in relation to this painting, you can still sell the original or, as just mentioned, license use of the image to other publications etc. Once you have a clear idea of the value - which you would be able to use to support your claim in court - then consider your next step. If the figure is too low, say under £100, then the court may well consider bringing a case before it is not a good use of their time unless the defendant clearly intends not to defend it. The cost of running the court for a morning, which a case like yours might take, would run into thousands of pounds, and if all you stand to gain is £100 plus the very limited costs involved in bringing your own claim (which in fact would not be a gain as you would be recovering expenditure already made to cover phone calls, letters etc and your own time away from your normal work), then you can see how that is not an efficient use of the court.
That said, the PCC Small Claims track works very much like the normal county court small claims route, except of course that the court sits in London (so you may need to factor in travel costs and time). There are fees to be paid to lodge a claim, but they are reasonable. And yes, you can represent yourself without a solicitor or barrister. It may even be that the case can be decided on paper without a formal hearing. Much will depend on how the magazine responds to your claim.
If in your dealings so far the magazine have made any kind of admission of infringement, which sounds as they might have done, then make sure you keep the relevant email(s) safely as they will be useful documentary evidence. And keep in mind that if the magazine is as impecunious as they say, then you may have to go back to the court for enforcement of any award which may be made in your favour. Alternatively the company could file for insolvency, in which case you will have to get in queue along with other creditors for a share of any assets of the company.
So much for going to court. What are the alternatives? Firstly you might consider a solicitor's letter. This may cost a couple of hundred pounds (depending on the firm you use) but you may be able to recover this cost along with the fee you are demanding. Even if you don't want to involve a solicitor, you will need to write formally (I suggest using a registered letter) to the publisher, laying out your claim and informing them that you intend to begin litigation. This is known as a letter before action, and is a requirement, even if you follow the small claims route. Clearly such a letter will have more impact if it is carefully drafted and appears on a solicitor's letterhead, and may be sufficient to make the company pay up. Did you follow my earlier advice about contacting DACS? If not then they may also be able to assist by suggesting a good solicitor or para legal or general advice
If that doesn't appeal, you could try alternative dispute resolution (ADR). This could be in the form of arbitration (where a neutral arbitrator decides the merit of each side's positions) or mediation (where a mediator facilitates a mutually acceptable compromise outcome through negotiation). I would advise against mediation as I believe your case is a strong one and therefore there is no point in reaching a compromise, which by definition will reduce the amount you may hope to get from the process. But bear in mind that ADR will not be appropriate if the magazine publisher refuses to take part. However, by making the offer, you may gain points with the court since it will be noted that you tried the alternatives first. You can get details about what ADR may be available locally through your nearest county court or Citizen's Advice Bureau.
So to summarise, do not go down this path, ultimately ending in court, unless a. you really feel the outcome will be worth the hassle and delay, and b. the amount you are seeking really justifies it. A moral victory which leaves you out of pocket, bruised, stressed and just as dissatisfied at the end, will be a hollow one.
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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Post by AndyJ » Tue May 28, 2013 8:34 pm

Hi Kat,
By way of a follow-up, here is a very recent case which has some parallels with your own. It was heard in the Patents County Court rather than the small claims track and involves a photograph rather than a piece of art, but otherwise the similarities may be helpful in illustrating to the publisher the sort of costs he may face if you are forced to take him to court. This was not a full trial. The purpose of this hearing was to establish the figure for damages which were at issue, and there has been no finding as to whether there was infringement, although it seems fairly clear on the facts given that (as with your case) there was infringement and that a lack of knowledge on the part of the defendant is no defence. I suspect the defendant's legal team will be recommending that they settle the matter outside the court and thus avoid the additional legal costs resulting from a full trial.
Sheldon v Daybrook [2013] EWPCC 26.
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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