Copyright Infringement - Author has cut up my illustrations

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Copyright Infringement - Author has cut up my illustrations

Post by Eska72 »

I recently illustrated a picture book of 32 pages for a friend who is now an author and self publisher, on the understanding that I was to receive advertising for myself as an illustrator through the book's promotion and a payment for my time if the book was successful in sales. This was a verbal agreement and no contract was signed as it was a favour between friends but after I had finished providing the work she went a head and printed up the book without allowing me to over see the artwork plus she cut one of the A3 drawing to make it fit the page. The finished print is appalling and my name is also missing from the front of the book as the illustrator and very little credit has been given to me throughout the massive advertising campaign she embarked on after the book went on sale at WH Smiths. I was then offered £250 2 weeks ago if I signed a contract that would prevent me from using my own artwork and allow her to own the illustrations out right. I refused to sign but she has all original drawings and has claimed that she owns the copyright on them. Fortunately I have the original scans I sent when I was drawing the pictures for the book, which are obviously dated plus I have all her emails from around June 2014 right up until 2 weeks ago that promise me advertising and payment for my work, plus a copy of the contract she wanted me to sign. I have mailed her stating that I want to enforce my right but she is confident and thinks that because she has the original work and is now claiming to be the owner/creator/author and publisher that I have no rights (She is claiming this on her website and various others online). I haven't told her that I have the emails and scan's but I have little experience with this type of thing and I have no money to pay a solicitor either and this whole episode with this person has run along side my father being diagnosed with terminal cancer just before I illustrated the work for this person so I am very vulnerable to this situation I find myself in especially as this lady is very well off. I feel that she was aware of what she was doing when she set out on this project. Could anyone please advise me?
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Post by AndyJ »

Hi Eska,
It's always a shame when collaborative projects between friends turn sour. However from what you have told us, I think you are on reasonably strong ground. I assume that in the emails she is acknowledging that you were the artist, and if this is so, there is no way she can claim copyright in the artwork without having a document called an assignment which has been signed by you. Clearly you haven't signed such a document, nor should you at this stage. A verbal contract can be valid so long as both parties were clear at the time that they were entering into an agreement by which they would be bound, which sounds like it was the case here. Clearly the emails will tend to support your case that there was a verbal contract. If at any stage, you communicate with her by phone, make a contemporaneous note of what was said and retain it along with the emails etc.
There are two aspects to this dispute: contract and copyright.
I think the copyright part is very clear and she does not have a leg to stand on when she claims that she already owns the copyright. Coupled to copyright ownership, as you already know, is the need to assert your moral right to be credited as the artist and you appear to have done this a couple of weeks ago. An assertion doesn't have to be in writing, but obviously its clearer if it is done that way. So once again you appear to hold most of the cards on copyright. Since the book has already had its first print run there's not much that can be done about that. However if there is a second print run, then you should be given a credit.
The matter of the edited A3 image is more tricky. Unfortunately an author's right to authorise an adaptation of a copyright work does not apply to artistic works, but the moral right for a work not to be subjected to derogatory treatment does apply. However as I assume the artwork was specifically created for this project, there may well be implied permission for the publisher (who of course in this instance is also the author) to make editorial changes without your permission.
This part is much less straightforward because of the verbal nature of the contract. In essence you say you and she agreed that you would provide the artwork and she would give you a credit and pay you an unspecified sum for your work. Since I suspect the verbal agreement didn't cover the details of when exactly you would be paid, she hasn't so far defaulted on that part, even though she has failed to give you a credit. And she may argue that the £250 is in full and final payment, and so she has not failed to make an offer of payment. I assume that assignment of copyright was not discussed in the early stages, or indeed what sort of licence she might expect. For something like this, it would not be unreasonable for her to expect, at the very least, a sole licence, meaning that you could not licence someone else to use the same artwork. But she seems to be demanding an exclusive licence which mean you can't use the artwork either during the term of the licence. (More details on this here). The type of licence (or the assignment of copyright if that is contemplated) and the length of its term have a major bearing on the amount you might be paid.
What to do next
I think the way forward is for you to write a letter clearly setting out your understanding of the original agreement and re-stating what you want. This should be matter-of-fact and not threatening in tone, leaving the door open for her to come back with a counter-proposal about what she believes was agreed between you. You should state that not only do you legally own the copyright in the artwork, you have only licensed her to use them in her book on the understanding that you will receive payment, and that failure to pay you as agreed in the original verbal agreement will mean that the licence is withdrawn and her continued use of the images will be infringement of your copyright. You may decide it would be helpful to draw her attention to the kinds of remedy you would be entitled to seek from a court for infringement. But do not make this sound like a threat as that would be counter-productive at this stage. However you are fully within your rights to demand the return of your artwork if that is what you believe was in the original agreement. You should also re-assert your right to a credit in accordance with section 77 of the Copyright Designs and Patents Act 1988 in any future prints of the book.
As I have already outlined, the least satisfactory part of this from your position is the matter of the payment which is due to you. You say that it was agreed that there would be a "payment for my time if the book was successful in sales" and you also say that you have been offered £250, albeit that sum was also intended to cover the transfer of the copyright. From this I assume the exact sum was not agreed beforehand, and if this is so (and there is no mention of a specific amount in the early emails), then she may argue that £250 is a fair price. Obviously I can't comment, not knowing any specifics about the artwork, on whether this is, in fact, a fair or unfair amount.
The chances are that this letter may get you nowhere. Since you don't want to go to a solicitor you may wish to offer, either in the first or a subsequent letter, that you and she take the matter to Alternate Dispute Resolution (ADR). This is a formal service which can be arranged locally, where an independent person will either mediate (ie assist you both to come to a compromise) or arbitrate (which means listen to both arguments then give his or her opinion on how the matter should be settled). This is much cheaper than going to court and doesn't require any legal teams, just a willingness by both parties to agreed to the ADR process. If you can agree this, you can find out about local ADR services from your nearest Citizen's Advice Bureau, your nearest District Court, or you can go through the Government's Intellectual Property Office website where you can also find more information about resolving disputes.
If the author fails to agree to this ADR approach, you will then have to consider your next step carefully. If you really cannot afford a solicitor you could apply direct to the small claims track* of the Intellectual Property Enterprise Court but if you decide to do this, you are probably going to need some help negotiating the application process and the law. If you know any one who is studying law at university or maybe go to your local CAB, for help with this. And you also need to be prepared for the stress and delay which will inevitably ensue with litigation, and which may ultimately only result in you getting the £250 already offered.
You need to weigh this against what you have been or may be offered by the author, and it might be simpler and less stressful to try and negotiate a better deal directly with her, if she was formerly a friend. Only you can make that decision I'm afraid.

*this is not the same as the Small Claims Court at your local District Court, which you cannot use because they do not have jurisdiction to rule of copyright matters.
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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