WA Intellectual Property Law - Art Altered Without Permission?

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CHICKIE

Active Member
23 August 2015
7
0
31
Several years ago, I was asked to help out a local "author' who needed an artwork completed within 3 weeks so she could publish a children's story book. I created the illustrations she needed within 1 week so she could show them to her publisher.

She then asked me to complete another series of drawings for three other of her stories before the 3 week deadline for publishing. I created those drawings within a week, and gave them to her. I was promised payment once the first book was published.

She had agreed on the current rate for illustrations, as listed on the ASA site. She agreed my work was of professional quality and worth fair payment, after viewing a poetry book I had illustrated for a Queensland author. She later told me the publisher was only going to print the first of her stories that I had illustrated.

Several months later, the storybook was published in 7 countries and on the internet as an e-book but when I saw the e-book, I realised she had altered some of my artwork, removing portions of illustrations to reuse those portions to make extra pictures in the book.

I had never authorised her to do this. I never gave her any written consent to alter my work and I never gave her copyright. Prior to publishing, she had promised to draw up a contract for me to sign in regards to payment, but kept claiming she was busy and had not had time to do so.

When I received notification from her that the book had been published I asked her for payment at the current rate listed on the ASA site, as we had agreed previously, but she refused to pay me and claimed I had "donated" my artwork.

She has never returned any of the original drawings I supplied her with, and has never paid me for my work. The book is still listed on the internet for sale.

What can I do about this under intellectual property law? I am very disappointed to have been used so badly by a well-known local woman who I thought I could trust to honour her word.
 

Tim W

Lawyer
LawTap Verified
28 April 2014
4,283
751
2,894
Sydney
This is not an IP question.
Sue her for an unpaid business debt.
 

Leonard Mancini

Lawyer
LawTap Verified
4 August 2016
47
18
189
Gold Coast
lawtap.com
Several years ago, I was asked to help out a local "author' who needed an artwork completed within 3 weeks so she could publish a children's story book. I created the illustrations she needed within 1 week so she could show them to her publisher.

She then asked me to complete another series of drawings for three other of her stories before the 3 week deadline for publishing. I created those drawings within a week, and gave them to her. I was promised payment once the first book was published.

She had agreed on the current rate for illustrations, as listed on the ASA site. She agreed my work was of professional quality and worth fair payment, after viewing a poetry book I had illustrated for a Queensland author. She later told me the publisher was only going to print the first of her stories that I had illustrated.

Several months later, the storybook was published in 7 countries and on the internet as an e-book but when I saw the e-book, I realised she had altered some of my artwork, removing portions of illustrations to reuse those portions to make extra pictures in the book.

I had never authorised her to do this. I never gave her any written consent to alter my work and I never gave her copyright. Prior to publishing, she had promised to draw up a contract for me to sign in regards to payment, but kept claiming she was busy and had not had time to do so.

When I received notification from her that the book had been published I asked her for payment at the current rate listed on the ASA site, as we had agreed previously, but she refused to pay me and claimed I had "donated" my artwork.

She has never returned any of the original drawings I supplied her with, and has never paid me for my work. The book is still listed on the internet for sale.

What can I do about this under intellectual property law? I am very disappointed to have been used so badly by a well-known local woman who I thought I could trust to honour her word.


Unless it could be argued you assigned copyright, you will be held to retain it as author of artistic works.

As copyright holder you would have been impliedly regarded as providing a licence for the use contemplated. But as the works were reproduced and modified, this would not usually come within the type of limited licence that would be implied. This act of modification and subsequent reproduction would infringe your copyright and potentially, your moral rights. Were you attributed in the published works?

The publisher in authorising the reproduction of these unauthorised artworks would also be infringing your copyright.

Id be going after her for a debt and breach of copyright and the publisher for breach of copyright. You could get the book pulled down under a DCMA notice or equivalent depending on where it is being sold. That should get them talking.
 

Kim Walters

Well-Known Member
LawTap Verified
18 July 2016
46
15
189
Australia
lawtap.com
As the owner of the copyright in the works, you have legal and enforceable measures under the law to take action against any person or business that infringes your rights.

These measures include sending a letter of demand ('cease and desist') alleging copyright infringement and infringement of your "moral rights'.

As the creator of the artistic works, you have the moral right to be attributed or "given credit" as the creator, the right not have someone else say they are the author of the work when they are not, and the right not to have someone change or alter the work without your permission. These obligations do not apply if you have given someone "creator's consent".

A "letter of demand" or "cease and desist" letter can be used by you to put the "local author" on notice of your intellectual property rights by giving details of the offending action, the legal remedies that are available to you, a request for an account of profits and a deadline for your demands to be met otherwise you may start legal proceedings.

It is important to determine whether there has actually been a legal infringement because threatening someone of an infringement could give rise to serious consequences. You must get legal advice before sending such a letter as you could expose yourself to a claim for making a "groundless threat" which is actionable under Australian law.
 

CHICKIE

Active Member
23 August 2015
7
0
31
My name is on the book as "illustrator" but my signature has been removed from each illustration. My art was used for the cover and throughout the book. I also provided other illlustrations that were not returned to me. I have removed the name of the story book from this copy of the invoice for the artwork.

1 x fullpage colour cover for “childrens story” @ $1,300.00 $ 1300.00

1 x ½ page black/white for above @ $340.00 $ 340.00 5 x full page colour for above @ $675.00 $ 3375.00

2 x ½ page colour for above @ $475.00 $ 950.00

1 x ¼ page colour for above @ $300.00 $ 300.00

7 x A4 colour for "P" @ $675.00 $ 4725.00

7 x A4 colour for “S " @ $675.00 $ 4725.00

11 xA4 colour for “S P ” @ $675.00 $ 7425.00

Sub Total: $ 23140.00

Plus 20% for no royalties. $ 4628.00

Total: *$ 27768.00

Those prices were the current fees listed as appropriate by the ASA website in 2012 and she had agreed to pay me the current approved rate.

I received an email from the author dated, June 13 2012 in which she referred to “no financial reward until sold ”. which clearly indicated the prior verbal agreement between us, that she would pay me for my illustration artwork.

I received a phone call in Sept 2012 where the author admitted still having 31 illustrations of mine and said she would return them and demanded I sign a note in front of 2 witnesses to accept only $500 for my work that had been published as part of her children's story book.

I was having tiring cancer treatment and could not deal with the stress of any conflict at the time.
 

Leonard Mancini

Lawyer
LawTap Verified
4 August 2016
47
18
189
Gold Coast
lawtap.com
My name is on the book as "illustrator" but my signature has been removed from each illustration. My art was used for the cover and throughout the book. I also provided other illlustrations that were not returned to me. I have removed the name of the story book from this copy of the invoice for the artwork.

1 x fullpage colour cover for “childrens story” @ $1,300.00 $ 1300.00

1 x ½ page black/white for above @ $340.00 $ 340.00 5 x full page colour for above @ $675.00 $ 3375.00

2 x ½ page colour for above @ $475.00 $ 950.00

1 x ¼ page colour for above @ $300.00 $ 300.00

7 x A4 colour for "P" @ $675.00 $ 4725.00

7 x A4 colour for “S " @ $675.00 $ 4725.00

11 xA4 colour for “S P ” @ $675.00 $ 7425.00

Sub Total: $ 23140.00

Plus 20% for no royalties. $ 4628.00

Total: *$ 27768.00

Those prices were the current fees listed as appropriate by the ASA website in 2012 and she had agreed to pay me the current approved rate.

I received an email from the author dated, June 13 2012 in which she referred to “no financial reward until sold ”. which clearly indicated the prior verbal agreement between us, that she would pay me for my illustration artwork.

I received a phone call in Sept 2012 where the author admitted still having 31 illustrations of mine and said she would return them and demanded I sign a note in front of 2 witnesses to accept only $500 for my work that had been published as part of her children's story book.

I was having tiring cancer treatment and could not deal with the stress of any conflict at the time.

I agree with Kim - a letter of demand to the Author and to the Publisher claiming copyright infringement and also a debt with the Author would be the best course of action. Theres enough in your claim to make the legal fees worthwhile.

However if you are short on cash to fund the letter of demand route, do consider your options involving take down notices, usually under the DCMA but that ultimately depends on where the book is being offered for download.

Feel free to get in touch for an estimate of fees for drafting letter of demand - 0756354214
 
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