Web Graphics and Copyright

Business
1

Hi guys,

I am writing this post because I have been ripped off by a client in a big way.

I have been far too trusting and basically someone has stolen some web graphics which I designed for them under a verbal agreement. The person in question was a real wolf in sheep’s clothing and I did a really good deal for a relatively small amount of money.

It has now been a month and I haven’t received a penny and they have changed their login details whilst retaining my graphic work on their site. I have asked politely so many times for the money and have also asked to have the work taken down to no avail. The channels of communication are closed and the person is ignoring all of my emails and texts.

I was wondering where I stand legally on this sort of thing? I have all of the original Photoshop and illustrator files and although it is a small amount of money and I often earn triple what I was paid for this job, it is the principle of the thing. In future I will be wary but for now someone has stolen my work. Is there any sort of cease and desist order I can send or maybe just some way I can scare them into paying? Any advice guys?

regards

Silversurfer

2

Does it matter much, in practical terms, ‘where [you] stand in legal terms’? You did the work, they’re using it, you’re due payment and they know it. If the sums are small you’re probably not going to get involved in legal action anyway, surely? Even Small Claims courts (eg in USA, UK) need a hefty input of hard earned cash up front just to get the process started, and then (optionally) more cash up front to enforce judgement if you win and they still don’t pay, and even then payment is not guaranteed.

Also, resorting to court action is not a particularly quick process. For the best chance of success, you need a good paper trail of, for example, original invoice, first reminder, second reminder etc over a period of many weeks. And that is before starting the court procedure, which takes many weeks.

I think you need to decide what outcome you want. Do you want them to stop using your graphics and definitely not get paid? Or do you want to get paid?

If you want to get paid then why not concentrate on that? You say the client is ignoring all your emails and texts. Maybe you have phoned, but the fact that you haven’t mentioned phone calls makes me wonder if you haven’t done this, or haven’t done this effectively? Because phone calls are the way to get paid. No drama, no excitement, just a polite and professional phone call asking for payment, and agreeing a method of payment and a date for payment. Repeat as necessary (but don’t harass them) until successful. Thirty days of non-payment is not very long, even if it is technically overdue. And best not to make any mention of ‘legal action’ this early, because that just makes people realise you don’t know how to handle this situation.

It’s not nice to feel you’re being taken advantage of, especially if you’ve worked hard and done a great job but, in reality, there may be some specific reason why they’re not paying you. The most common reason, of course, is shortage of cash. That’s why you need to talk to them, not email them. You have to find out exactly what’s going on and negotiate a solution, then follow up persistently. The squeaky wheel gets the oil, etc etc. Good luck.

Paul

3

Thanks for the advice. Much appreciated

4

Actually, small claims court can be pretty easy and not particularly expensive. For a small amount, you may wind up getting a judgement that isn’t easy to collect on but you could probably get it.

I think you might be able to inform their host about the situation and have your work taken down, but I’m not sure about the rules regarding that.

5

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The problem with small claims courts is they need to have the agreement of both parties before they will hear the case. In this case, “the channels of communication are closed and the person is ignoring all of my emails and texts”, in which case he’s unlikely to agree to the small claims court.

(At least, that’s the case where I live. In other countries, the system might be different).

But, depending on the country, there are other options. In England & Wales, you can go to the County Court and apply for a default judgement against the client. In Scotland, it would be the sherrif’s court. Either way, you win the case if the client doesn’t show up.

But you probably don’t need to go that far. You say he isn’t answering emails or texts. What about an old-fashioned phone call? A polite discussion on the issue might solve the problem - always assuming he answers your call, of course.

Mike[/FONT]

6

For what its worth (and to the best of my knowledge), Small claims - or Disputes Tribunal as its called here in New Zealand seems very effective. NZD30, 2h of self representation and the judgement will even be enforced by the court, ie. they go to the respondent and collect the money (or what else they find valuable if necessary).

My car insurance “took me along” to my case and it was very straight forward.

7

Thanks for your advice guys, don’t know what the small claims court is like in the uk but I will look into it.

8

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But do keep in mind my point about it requiring the agreement of both parties. You can’t start an action in the small claims court unless the client agrees, and given that you don’t seem to be communicating with the client, it doesn’t seem likely that he will agree.

The best advice I can give you is to try to open up some channel of communication with the client.

Mike[/FONT]

9

I believe you have misunderstood the small claims procedure in the UK. There is no requirement for the other party to agree - why would anyone choose to agree to being sued in small claims when they knew that by not agreeing the other party cannot sue them?

The main requirement is that you prove you tried to resolve the situation amicably first, and have tried to exhaust all other means before moving to small claims. You must warn them in writing that you intend to proceed to small claims and give them a reasonable chance to respond. If they refuse to respond, you are perfectly within your rights to take them to small claims.

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/pd_pre-action_conduct

10

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There is no requirement for the other party to agree - why would anyone choose to agree to being sued in small claims when they knew that by not agreeing the other party cannot sue them?

It’s not a question of agreeing to be sued. A small claim case is appropriate where there is a dispute which the parties cannot resolve themselves, so they agree to let a court hear the case and make a ruling. It’s true that you can apply for a default summons, which means you get judgment if the defendant doesn’t show up, but I believe that would then escalate to a higher court, such as county court in England & Wales (but I’m not sure about that).

It’s also worth mentioning that there is no such thing as a UK small claims system. Each country in the UK has its own system and procedures. In fact, I believe that in England & Wales, there isn’t really an actual small claims court as such, but rather a small claims procedure within the county court system (again, I’m not sure about that; perhaps someone will correct me).

Mike[/FONT]

11

The other party is not required to ‘agree’ though, there doesn’t have to be a ‘they’ - the two parties must try to resolve the case privately, and then if resolution cannot be reached, the aggrieved party must inform the other party of his intent to go to small claims. If the other party then chooses to not respond to that warning, you are free to proceed to small claims without their ‘permission’ to do so. This is not the same as obtaining a default judgement if the other party refuses to show on the day of the hearing - they may still show up, but they may also have not specifically agreed to accept entering the small claims procedure in the first place.

12

[FONT=verdana]Shadowbox,

OK. Point taken.

Mike[/FONT]

13

If they are in the US, send a DMCA takedown letter.