Advice: Copyright Infringement/Plagiarism

[prepsage]

I've run into a problem and I was wondering if anyone had advice.

I was commissioned to create artwork for an independently published book cover by the client in September of 2006. After the signing of the contract, I created several thumbnail sketches as a preliminary comp for what was to be the final painting. However, after three rounds of thumbnail sketches, I no longer heard from the Client for two weeks after repeated attempts to contact him via email and phone. I finally received an email from the client stating he could not use the artwork for his book.

Repeated attempts at collecting payment for work rendered was unsuccessful (50% of $1,650 as stipulated by the "kill fee" in terms of the contract). Due to the amount of money involved, it would not have been cost effective for me to pursue the matter in small claims court.

However, fairly recently I discovered that the Client had his book published and the cover art was suspiciously similar to a set of the thumbnail comps sent to him (similar enough to be sure he sent my thumbnails over to someone cheaper). Suffice to say, what I had initially shrugged off to simply a bad experience with a client, became something a bit more.

I'm at a bit of a loss at where to go from this point, or what I'd attempt to collect from the Client (if possible) besides the initial "kill fee" and late payment fee. Considering the job had a low initial price point It's not economically feasible for me to hire a lawyer since their retainers are so high (already tried).

I do have a copy of the contract signed in electronic format, dated log of communications with the client, as well as original and electronic copies of the artwork.

Thanks in advance.

[arttorney]

In your county law library there will probably be books that tell how to wage such a lawsuit, including perhaps some sample legal forms. The librarians will probably be helpful, at least by New York standards.

If you DIY this it will probably not be easy because you will sometimes have documents rejected by court clerks at the filing window (due to some legal informality), so never wait to the last day to file anything. Those guys will be less helpful. It is possible to represent yourself, though.

You would need to do it in Federal Court (because of federal preemption of copyright issues) and you would need to have a registered copyright on your works before you have the prerequisite standing. The federal courts usually have a lot of nice shiny marble work, but do not draw in there or you will probably get rousted by a Marshal.

[DSillustration]

Contact his new publisher.
Their artist must sign a contract stating that his work is non-derivative (which it IS according to what you are saying).
A reputable publisher may make amends on behalf of the author to avoid a lawsuit...
or they may not.
But it's worth a try.

Though, not to doubt you,
perhaps you should post the examples to be sure you aren't barking up the wrong tree.

[prepsage]

Here's the thumbnail I created alongside the current cover.

http://img53.imageshack.us/img53/5885/49685336zt3.jpg

Thanks for the advice.
Unfortunately, he's self-published through authorhouse (http://www.authorhouse.com/) so I doubt they'll be of much help- But It's worth a try so I may go that route as well. **Edit-just called and they had produced it in-house. Going to speak with their lawyer though.

I'm going to file the thumbnail sets with the copyright office tomorrow just to have that covered. It's not even about the money. It's just principle at this point.

[Black Spot]

They are close but there are quite a few differences, so it might come down to the original remit he gave you. Can you post that? Either way he should have paid you at least the 50%. Don't know how it stacks in the US, but in the UK if you win you get costs.

[J Wilson]

I agree with you that the cover is remarkably similar to your sketch and they obviously worked from it. I would think that this should be a fairly open and shut case.

I don't have much legal experience but isn't this the sort of thing that easily falls into a small claims court, which tends to not use lawyers and is self represented? They may not have the same legal experience as copyright lawyers, but I'd think the covers are similar enough that any average person will see the similarities- and you have the contract and dated emails on your side as well.

[J Wilson]

They are close but there are quite a few differences, so it might come down to the original remit he gave you. Can you post that? Either way he should have paid you at least the 50%. Don't know how it stacks in the US, but in the UK if you win you get costs.

There are differences, but there are ALWAYS differences. There are relatively minor differences between sketches I submit and the finals I submit all the time. In this case I'd think we'd be much more interested in the similarities, of which there are numerous and obvious ones. I can't imagine any brief being specific enough to produce two independant covers that are THAT similar.

[Black Spot]

There are differences, but there are ALWAYS differences. There are relatively minor differences between sketches I submit and the finals I submit all the time. In this case I'd think we'd be much more interested in the similarities, of which there are numerous and obvious ones. I can't imagine any brief being specific enough to produce two independant covers that are THAT similar.

It all boils down to the original remit. Two kids with a dog in front of a cityscape and the sun shining down on them. Also when did he employ the other artist?

I don't want to do an artist down, but want to know the cold facts. How do you think a court is going to question this?

[prepsage]

His brief was awfully specific. But I don't know if another artist would set the composition in pretty much the same exact way. I tried calling their art department, hopefully I'll actually get to speak with the artist before the lawyer calls...

**Edit: Spoke to their artist. She first stated that she worked off a sketch the client gave her- then backtracked and said she didn't do it after I explained the situation... I probably shouldn't have explained the situation in retrospect....

Unfortunately, I believe to file small claims requires me to fly over California to file. And once again for the proceedings if he even bothers to show up (which I doubt). These days my time is better spent actually working-but this has riled me up enough where I might just do it.

[arttorney]

The books in the law library will explain even "which courts and which jurisdiction" type of issues.

Why I mentioned Federal Court is because, if you start in a state court and the defendant lawyers up, that lawyer will immediately go to federal court and file documents causing the Federal Court to remove the case from the jurisdiction of the state court. It's a slam dunk way to waste plaintiff's time and money, and take the initiative in the case (as well as getting it out of small claims court so the lawyer can go into action).

[prepsage]

Just filed the copyright. I might have a lawyer... We'll see how it goes.

Thanks for all the advice everyone. It really got the ball rolling on this.

[paramnesia]

The California Lawyers for the Arts (http://www.calawyersforthearts.org/) handles cases where either party (including the publisher) is in California and may also be able to help if you need additional advice. For New York folk, there's the Volunteer Lawyers for the Arts (http://www.vlany.org/). Both, however, seem willing to offer what advice they can even if they may not be able to represent an individual.

If the artist did work off your sketch then backtracked when she learned the story, I hope Karma comes around and bites her in the butt. She could have been worried she'd get in trouble, but protecting a dishonest client just lets him do it again and again to others.