Should I sue?

[wes_carroll]

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 agreed 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 with 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 on two occasions requesting the prints. My letters were ignored. I have finally decided 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?

[jim6]

Wes,

 

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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!

[todd_caudle]

Was your agreement in writing? Could be a big help. That's not to say

you're totally screwed without it, though.

[wes_carroll]

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.

[scott walton]

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.

[lyle_aldridge1]

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.

[wes_carroll]

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.

[doug_paramore]

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.

 

<p>

 

Regards,

[andrew_cole1]

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).

 

<p>

 

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.

[erik_ryberg]

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.

[ellis_vener_photography]

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.

[carl_weese]

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.

 

<p>

 

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

[erik_ryberg]

"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."

 

<p>

 

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.

[wes_carroll]

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.

[todd_caudle]

Wes, please keep us all apprised of what transpires. Could be a big

help if others encounter similar scenarios.

[wes_carroll]

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.

[john_elder1]

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