Wednesday, 22 August 2012

What Would You Do?

You may have noticed that I've been absent for some time. On top of writing and work there are issues I've had to deal with, one in particular. Thing is, now I feel absolutely stuck. I can't think of anywhere else to turn and I can't afford a lawyer. It's a long story and I'm going to start at the beginning, please stick with it because I really need some advice.

In September 2011 I was lucky enough to stumble across an ad on Kindle Boards, posted by an artist offering her photomanipulations for exclusive cover art at an incredibly reasonable price. I couldn't believe my luck. I'd already had a cover created but it never seemed quite right. Upon perusing the artist's gallery I was stunned by an image that was absolutely perfect for The Sphinx Project. The colour, the composition, the character. Everything fit just right. I hurried to claim the offer and I paid the fees. 

I set to creating a cover out of my newly purchased art and, when it was just right, began showing it off. I was utterly in love with it. I still am. The picture embodied everything I felt about my book, The Sphinx Project, and to me it was like realising a dream. That was the point where it finally felt real. This WAS going to happen. Then the responses started flooding in and everyone else agreed it was pretty amazing. The pride I felt... I just can't even explain it...

Everything was fine until a few months ago. The first time I had any inkling about what was happening was when a friend messaged me on Facebook:

"quick question: 
the cover on your book did you buy that picture exclusively?"

I read the words and my stomach sank. I knew something was wrong. I hadn't talked to the artist much but I felt like I could trust her... she hadn't ripped me off... had she? 

While I waited for her response my eyes never left that little chat box. I watched her typing, and then pausing, and then typing again until. What felt like an age later, she pushed send. All that came in that message was a link to a blog. 

I held my breath and clicked. The page took forever to load, but when it did I was gobsmacked. My heart rate accelerated and I could actually feel it beating in my chest. You know that feeling when you're terrified of heights and then you look down only to realise you're further up than you thought? Or how about giving a speech in class when you're terrified of public speaking. 

Right there, on another author's blog, was the artwork I had been sold exclusively. Upon investigation I found that the other author had been using the image, the one I'd used to create my cover, to illustrate his serialised fiction, posting new chapters as he wrote them. I won't comment on the quality of the writing, but I will say it is in the same genre as The Sphinx Project and the blog seems to reach quite a readership. His Facebook page alone has 5500 friends and several hundred subscribers.  

I was furious but I could see straight enough to realise I didn't want to do anything I'd regret later. I ranted and raved to my friend, but left it at that. When I cooled down a bit I began analysing the situation. As far as I could see there were two possible scenarios. The first involved the artist selling the image to someone else, but the much likelier version, to me anyway, was that this author had stumbled across the image somewhere on the internet and decided it was just right for his story. 

I decided to give both the benefit of the doubt and sent two emails. The first was to the artist to ensure that she hadn't, perhaps inadvertently, granted this author permission to use the artwork. Perhaps she'd said yes in passing before she'd even thought to sell her work. In that case it would be easy to fix and she could just email the author and request he take the image down from his blog and anywhere else he'd been using it. The thing was, the artist had disappeared from Facebook some months before, since (I think) her laptop broke and I wasn't sure she'd even see the email. As a precaution I also emailed the author, politely explaining that I had purchased the exclusive usage rights from the artist and could he please remove the image from all locations he'd posted it. If, I thought, it was an honest mistake he'd be more than willing to remove it and maybe even apologise. I know I would.

Some time later I received a response from the artist confirming she'd never granted permission to anyone else and asked for links. I provided them and gave an explanation of the email I'd already sent, asking her to keep me in the loop and let me know what she plans to do. It has been several weeks and I still haven't heard back. As far as I'm aware she's never done anything about it and he's still using the image.

As for the author in question, he never even replied. I know he got the email, I submitted it through his website and received confirmation it'd been received sent to my own email, but he has blatantly ignored it. Not only has he ignored my request, but he has continued using it. He has since posted several new chapters, each illustrated with my cover art. 

The thing is, I have no idea what to do any more. I am not the copyright holder, that's the artist. I only have the usage rights so I can't send a DMCA notice to his web host or Facebook requesting they pull it down. I don't want to continue emailing him because, quite frankly, he doesn't seem like someone I'd get along with and he has a lot of followers. I've seen how messy these things can get and I don't want my book slammed with one-star reviews.

Please, if you have any suggestions please let me know. I've been trying to deal with it in private for quite some time but now I'm getting desperate. I'm clueless about where to go next.


Edited to add clarification:

This post is about my book The Sphinx Project. A book that has been published with this cover since February 28th this year. I will not be changing the cover. I can't afford to pay an artist and there is no way I'm replacing it with a stock image after I've had something so wonderful for so long.

There is no signed contract between myself and the artist. At the time I was not aware there was any need. I thought it was a simple sale and purchase, like most other goods. She stated her terms in her thread, I agreed and paid the asking price. All I have is the original forum post (which is still live, although I've also saved a copy as a screen cap) and our email correspondence which is primarily about the actual payment. Yes, I know this is stupid now but I had no reason to know otherwise at the time. I can only blame ignorance.

I am not looking for any form of compensation. I simply want the other author to cease making use of this image. I do not want to be associated with him, nor his work, in any way, shape or form.

I currently live in England, the artist lives in Croatia and the other author lives in America.





16 comments:

  1. Get a refund from the artist. If they aren't going to stop the author from using an image they have no rights to, then they should give you your money back. Sorry, this happened to you. You're a wonderful person and don't deserve this kind of stress.

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  2. I have no advice, but I just wanted to say I'm sorry this happened! That really sucks. I hope you can find an outcome you're happy with. xx

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  3. Actually, you do hold copyrights to this piece of art if you've purchased an exclusive use license. The artist at this point only can use the art to promote themselves but not for anything commercial. The second author is in violation of that copyright and a DO NOT USE notice can be sent to any supplier of their book.

    If they do not cease using the cover, you can file a small claims against them, stating damages of a minimal amount and request the author desist in using the piece.

    Your license gives you the right to use the art in any fashion you wish because you've purchased it to use in exclusion of all others. So long as you have an invoice stating such or communication between yourself and the artist, then that is all you need.

    Whenever I do a cover for someone, I include language stating this. It's pretty boilerplate.

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  4. Email the artist again and ask her to send the DMCA notice to his web host.

    You paid her for the usage rights. She really needs to handle this for you both.

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  5. If the artist sold you EXCLUSIVE rights to that image then I think you actually BECOME the copyright holder for that image. Copyright is transferrable and that's what 'EXCLUSIVE' means. However, if you don't have a copy of an contract detailing the extent of your rights regarding the image it can be difficult to win in a legal battle.

    If you are still in contact with the artist request that she send you an affidavit of copyright transfer, or you can send her the form and request she fill them out. They're extremely common online, and most professional photo studios use them to offer their customers the 'right' to reprint the photos they purchase.
    Once you have documentation from the artist stating that the rights to that art have been transferred to YOU, you can issue the DMCA takedown.

    And yes, it does NOT matter if he stole the picture 'before' you owned the copyright, copyrighted artwork covers the art from the moment it was created.

    Like if you stole an image of Pixar's Wall-E and started stamping it on your product, it doesn't matter WHEN you got the artwork, it belongs to Pixar, and their lawyers will make SURE you know that.
    Hope that helps.

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  6. This is an example of the form, useful to have in the event that a lawyer wants physical paperwork to bakcup a claim.
    http://www.copylaw.com/forms/copyassn.html

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  7. Thank you so much for replying, everyone!

    Megan and Callie: Thank you so much for the support!

    Rhysford: I didn't realise until relatively recently that cover art sales should come with a contract. At the time, as far as I was aware, it was a simple sale and purchase. She stated her terms and I paid the price. I don't have a contract, just the initial forum post (which is still there and I have a screen cap just in case, although I don't know how much use that'd be because those things wouldn't be difficult to doctor.) This is why I've been hesitant to even contemplate DMCA notices because were I required to prove it, I don't know if what I have would stand up.

    Scath: Earlier today someone offered the same suggestion, so I've sent another email to the artist asking her to inform me of what she plans to do and in what timeframe (Its been two weeks since I responded to her reply.)

    Liz: Yeah, no contract. When I purchased I wasn't aware it was something I'd need. I thought it was like any other goods, just a sale and purchase. She stated her terms and I paid the price. I've emailed her again today so hopefully she'll reply. I'd read about copyright transfer and I was tempted to ask her, but I've seen artists quite opposed to signing away copyright before and didn't want to sour her.

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  8. That's an awful thing. I hope you can either get your money back or resolve the situation. Okay, the skinny on copyrighting artwork straight from the copyright office, upon creation sounds great, but you have to get transfer of rights for your records or it doesn't belong to you. I know, sounds crazy especially if it is part of your own work. You can type up simple form stating exclusivity and word it the way you like, be sure to add all titles to form.

    I designed, sketched and sculpted for my cover and was told by copyright office still needed a transfer of rights from graphics person and to get artwork copyrighted ($35).

    I hate to suggest this...but if you can't get your money back take a deep breath and say, "lesson well-learned." Start from scratch and COPYRIGHT, COPYRIGHT, COPYRIGHT.

    Don't spend too much time trying to resolve this. It'll slow the book's progression if you do. Use the extra time to work on your craft--resolve later. Remember, you created one before and chances are the next one will be even better--that's how I feel about people stealing others work, re-dos and re-editing.

    You can always do better the next time...kinda like the first book you write might be good, but the next one will be crisper and cleaner because you know better what to do. I know it hurts and you put a lot of work into your stuff, but don't stay in this spot for too long. Get your book out there! I hope this helps.

    ~A.M. Day

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  9. Copyright law is really complex. I don't mean to be rude, but it looks like some of the "info" in earlier comments is not accurate. You can't rely on blog comments for what is, in effect, legal advice regarding your specific situation. You can do your own research from authoritative sources (e.g., the Copyright Office), but to really know what your options are, you need someone who is qualified to provide legal advice (and I understand that is not in your budget at this point).

    One quote from Circular 1 from the Copyright Office seems particularly relevant:

    Any or all of the copyright owner’s exclusive rights or any subdivision of those rights may be transferred, but the trans­fer of exclusive rights is not valid unless that transfer is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent.
    (emphasis mine)

    As much as I hate to say it, if the artist is unwilling to get involved I think your cleanest, cheapest, and safest option is to get new cover art, and make sure all of the paperwork is rock solid from the beginning. The one benefit of this fiasco is that you have something you really like, which can help guide a new artist's efforts.

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  10. Wandered here via Dear Author. I'm sorry to see this happen to you--if I were a stronger painter, I'd paint you a new and better and thoroughly awesome cover. But I hope it helps at least a little to hear that, after reading this, I'd like to buy and read your book. One good thing that comes of this may be some new fans and supporters.

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  11. Also wandered here via DA and made sure to post about it on my blog, telling people to give you some love via Goodreads!

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  12. I wandered in from Book Geek's place...

    One thought to chew on in this is that getting a confirmation email from his email submission form is not nessecarily a garuntee that he has actually gotten the email. It just means that the system processed your request and sent it to him. It's possible even then it got sent to his Spam folder, or that he has read it and is unsure how to proceed (given that he bought the image, perhaps, from a stock photo website) or several other things.

    I would definitely contact him again. Have you looked at Facebook or other social media outlets he might be listed at? I admit that my email isn't easy to find for my serial novel, but I'm Facebook (as a writer as well as a private citizen), and I post my twitter details publicly. That might be what it takes to get his attention.

    Also in the US, if you are the copy right holder you can send at DMCA notice to his provider regarding the violation. The problem is that if he challenges you in return, and you can't prove you own the rights you are kind of stuck.

    I feel for your plight and offer my sympathies even if I don't have a ton of good advice.

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  13. This is just terrible. For you to buy an exclusive pic and then to find out someone else is using it has to be a terrible blow. However, because of the difficulty navigating copyright law, as well as the 'international'-ness of the case, if I were you, I would keep your cover copy and just realize that there is something else out there on the 'net that looks similar. There are many, many different stock photos that are used and reused by publishers (including the big houses) so it is not unheard of that a cover or pic is used for more than one work. Just know that someone else using the graphic doesn't take away from your work.

    I don't mean to belittle what you are feeling, but I do think it would be better for you to try to just let this one go. Most of your readers (ie almost all of them) will probably never stumble upon this other persons work, and even if they do, again it will not diminish you or what you do in any way.

    Again, I feel for you, but it may just be best to let bygones be bygones and write that next awesome book that you probably already have sitting in your head.

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  14. As a cover designer, I INSIST on written contracts, even for quick work. I'm really sorry you are learning the hard way that without something in writing you are pretty much out of luck if the artist and the other author don't choose to honor your wishes.

    A contract does more than protect the artist, it also protects the author. I agree it's a lovely piece of art, but you may just have to deal with it being used elsewhere. If it makes you feel any better at all (probably not...) the reuse of good cover art is pretty endmic even in printed covers by top end publishers.

    I'd say enjoy your cover, and put this other behind you if you can't get them to voluntarily do something about it. It's still a great cover.

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  15. Stuart Whitmore is absolutely correct. Someone just sent me the link to this blog post. Where does everything stand now?

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  16. Thank you so much to everyone who commented. In the end things (sort of) worked out. I posted an update on this blog. :)

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