View Full Version : Should I sue?
Six years ago I allowed an artist to copy one of my photographs. He had seen it in a magazine and after contacting me several times I finally relented and agree d to allow him to paint it. He wanted to buy all rights to the photograph but I declined. We finally agreed I would receive fifteen artist proofs as payment wit h a guaranteed value of one hundred fifty dollars each. I did see the completed painting at an art show. The artist told me at that time that I would recieve my proofs in about four months. I have not heard another thing from him. I wrote o n two occasions requesting the prints. My letters were ignored. I have finally d ecided to either drop the matter or make him settle up. Suggestions? His prints would mean nothing to me except for what I might sell them for. Should I sue for two thousand two hendred and fifty dollars which he guaranteed his prints to be worth?
Depending on where you are, you may want to try small claims court. I've done the same thing before. I blame myself for not getting an agreement in writing and signed. It was a good learning experience for me though. It would most likely cost you more than the two thousand dollars just to retain a lawyer. Good luck!
Was your agreement in writing? Could be a big help. That's not to say you're totally screwed without it, though.
Yes, I do have it all in writing. It is in his handwriting and on his letterhead. After dealing with this guy, I'll never deal with another artist. Let them use their imagination instead of copying someone else's hard earned photographs.
Wes, persue this matter. It is business and you have a "contract" in hand. Sue him for the money and the court cost. It is copyright infringments at the least. Don't let "artists" make money on your hard work. This is federal and no judge will go against that. Don't let this slide. The laws are written for us (as shooters) by us to protect our work. The image is a copyright at the time the shutter was clicked.
Small claims court may be your best answer. After six years of non- performance, though, you may have a statute of limitations problem that would get you bounced out. Here is Arizona, for example, six years is the limit for suing on a written contract, and the starting point for measurement varies, depending on how the contract is written. Time periods are shorter in some other states, longer in others. It might be worth a short consultation with a local lawyer to find out.
The length of time does concern me. I know I should never have allowed this much time to pass. I think I need to put closure on this matter one way or another. I guess I just hoped this guy would eventually decide to be honest. I am tired of a large percentage of my photography dealings turning out to be a hassle. Everything I send out is done in a professional manner. Apparently publishers have so much to choose from that they think we are all desperate. I have had enough of my work published that seeing my name in print isn't as exciting as it once was. If People can't honor contracts, then I'm not interested in dealing with them. It seems like a lot of people want to use photographs but don't feel they need to be treat the photographer fairly. I have really backed off in my efforts to sell my work. I pretty much just keep it at a hobby level now.
Wes: One of the reasons I sell my photography at art shows directly and don't mess with galleries and shops is that it is always a hassle to get one's money. Even with the better galleries I sem to have to make a few phone calls and pay a personal visit to get my money. Photographers aren't alone in this. This is one of the resons I sellll directly to the customer. The sales are better when you can meet the buyer face to face, and you get paid at the point of sale. As to your problem in collecting the money owed you, after six years it is unlikely you will ever get paid, but you can still try. I would try sending a registered letter with a bill for $2,500, but you are probably wasting your time. Incidentally, I have doubts that the prints of a painting would be worth $150 each, unless they are framed, matted and sold at an art show by a well known artist. I have had several artist paint from my photographs and rather than go through all the hassel I just let them paint away. They can do their thing and I do mine, and mine is photography. Often at art shows the atists and photographers trade prints, so I really don't lose anything. It doesn't really cost me anything if they paint from my photographs, and it isn't really competition. The folks who are looking for a painting ain't gonna buy the photograph, and vice- versa. I know there are numerous photographers who will disagree with me and that is fine, but it works best for me to do things that way.
Did the contract state when the proofs were to be delivered (or was it stated orally or understood)? The statute of limitations might not start running until that date (giving you more time to sue).
Although copyright is federal, your claim sounds more like breach of contract which is what small claims court was set up for. I don't know what jurisdiction you're in, but a lot of small claims courts are geared toward parties without attorneys (Judge Judy style). Ask an attorney friend his thoughts (make sure he isn't charging you) and decide what it's worth to pursue it.
Anthony J. Kohler
Generally speaking, if the artist was representing that the prints 'would be delivered,' he cannot then claim that that time span counts against the statute of limitations. However, it is important to move quickly on this in any event. There are several possible limitations, depending on where you are, where he is and what law you take action under, and the one thing you can do is lose your right to enforce the contract through inaction. I would definitely try small claims first.
It sounds to me like a contracts claim, not a copyright claim, and thus would not be in federal court. My advice is to bluff. Why not find an attorney who will draft a letter demanding payment and threatening in definite terms to sue for both the money and the attorney's fees if not paid by a certain date? This should frighten the fellow into paying without your having to go to court, and wouldn't cost you too much.
You need to talk to an attorney where you live. Fortunately this is a primarily a contractual matter and not a copyright violation, although if you've regesitered your copyright you have a big club to swing with. Too bad the guy is a lying ass****, most of the artists I've dealt with with were much better people.
This is both a contractural *and* copyright issue, and copyright is the much bigger club to swing. When someone agrees to terms in order to use your image, failure to live up to those terms is copyright violation.
Someone else also pointed out that the whole thing sounds fishy, with good reason. There are very few painters who's reproduction prints sell reliably. There are such folks, but not a lot of them
"This is both a contractural *and* copyright issue, and copyright is the much bigger club to swing. When someone agrees to terms in order to use your image, failure to live up to those terms is copyright violation."
Not that it really makes any difference, but there is actually a case similar to this one that is taught in first year civil procedure courses in law school: T.B. Harms Co. v Eliscu, 339 F.2d 823 (2d Circuit, 1964). The copyright wasn't violated, because a contract was made permitting the photograph's use. What was violated was the contract.
I am surprised at the response this topic is getting. I really appreciate all of your comments. Keep them coming please. I'm really getting some new ideas. I am definately giving him a deadline. January 14th, or I'm talking to an attorney. I have written him a short but firm letter. I think I will make a few minor changes after reading all of your comments though. I really think if he still doesn't pay up, all I will be out is the cost of an attorney writing him a letter. Unless he knows something I don't, I don't think he would risk being sued over this. I know if I got a letter from an attorney threatening legal action, it would get my attention.
Wes, please keep us all apprised of what transpires. Could be a big help if others encounter similar scenarios.
I sent this guy a VERY firm letter Saturday. I gave him until the 14th of January to respond. I promised to take legal action if he failed to respond. He called me today and we came to a mutual agreement. If he doesn't do as promised, I will post the continuing story. I guess I should have threatened legal action sooner. Thanks to all of you for your suggestions. They helped me decide on the wording of my letter to him.
Dear Wes, Make sure that you reduce your settlement aggreement to writing, signed by both parties. This contract can be the basis for a lawsuit with the statute of limitations beginning to run from the date of the new agreement. If he is not willing to sign this settlement aggreement then he is just jerking you around and you should sue him on Jan 14th. Threanten him with puntuve damages and usually there are treble damage provided in a deceptive trade practice suit. John Elder
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