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  • Legal Question

    I have been doing mostly work in-house for the past 20 years as a graphic designer. Recently, at the request of several people that have seen my work, I decided to branch out and do artwork for local publications and businesses.

    I hooked up with a publisher of a local magazine and started doing print ads for him. I did 10 ads in total, he said to go ahead and send the invoice and he would pay me. Payment time came around, and he said he was a little short, and if I could wait til the next publication, he would pay me. That came and past, and still no payment. I have not done any ads for him since, of course, but he still continues to use my ads in his publication and has yet to pay me to date.

    I emailed him a Cease and Desist stating that since he did not pay me, I still own the rights to the work. He responded by saying that since it printed already that he owns the rights.

    My question is, can I sue him for copyright infringement, just the money he owes me, or should I just write this off as lesson learned?

  • #2
    I'm not an attorney, but based solely on what you've written, he most definitely does not own the rights just because he's used your work and not paid you. I mean, that's one of the stupidest arguments I've heard. It's a bit like going to a restaurant, eating the meal, then claiming you don't need to pay since the foods already in your stomach.

    Did you sign a contract with this person. If not, it's going to be more difficult to collect the money if he refuses to pay you, but still not impossible if you have a string of emails outlining the whole problem.

    Suing for copyright infringement is expensive since (in the U.S. anyway), it would mean a suit in federal court. You likely don't want to go there unless there are tens of thousands of dollars at stake. Based on how much the weasel owes you, you might try small claims court and sue for non-payment, which is pretty easy stuff in most states. If it's a larger sum, your best bet is to contact a lawyer. Lot's of times when deadbeats know you're serious, they'll suddenly come up with the money if they know they're going to lose and be stuck with not only a court judgment against them for the payment but also an order to pay your legal expenses.

    For what it's worth, most clients are honest. Still, there are a few professional deadbeats who go through life cheating people, and they know all the ins and outs of doing it. Always get a contract signed before you start work -- especially if it's from a new client that seems even the slightest bit iffy. Fifty percent in advance for these kinds of clients should be a rule.

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    • #3
      <Not a lawyer.

      Copyright is tricky. While you might get a formal C&D out of going to court, in order to get paid for damages beyond what your client owes you, or court fees, your design actually has to be registered with the copyright office. Since this is rarely the case, copyright might not be the best argument for a court. Non-payment of contracted money is more likely to get you somewhere.

      Your client is confusing copyright by ''fixing in media'' with who is actually doing the ''fixing.'' You actually ''fixed'' it first by saving your design file to your computer. He basically stole your work (by non-payment) and published it in a magazine under his copyright. As far as I know, he can't do that without your permission to do so.

      If it is worth it to you, you can see if you can hook up with a Volunteer Lawyer for the Arts if there is an organization in your city. Do a web search with that in quotes with your state after it.

      <Not a lawyer.
      ------------------------
      From: https://www.copyright.gov/circs/circ01.pdf

      Copyright Registration
      In general, copyright registration is a legal formality intended to make a public record of the basic facts of a particular copy right. However, registration is not a condition of copyright protection. Even though registration is not a requirement for protection, the copyright law provides several inducements or advantages to encourage copyright owners to make registration.
      Among these advantages are the following:

      • - Registration establishes a public record of the copyright claim.

      • - Before an infringement suit may be filed in court, registration is necessary for works of U. S. origin.

      -• If made before or within five years of publication, registration will establish prima facie evidence in court of the validity of the copyright and of the facts stated in the certificate.

      -• If registration is made within three months after publication of the work or prior to an infringement of the work, statutory damages and attorney’s fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner.

      -• Registration allows the owner of the copyright to record the registration with the
      U. S. Customs Service for pro*tection against the importation of infringing copies.
      -------------------------
      Last edited by PrintDriver; 12-03-2016, 08:35 AM.

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