197 PHILIP CHUDY SETTLES WITH PICTOR
February 1, 1999
In this era of instant communications it still occasionally takes a long
time for information related to happenings in Europe to make its way across
We have just learned that in late July 1997 Pictor admitted in Central
London County Court to owing Chudy approximately £45,000 in
commissions on licensing fees plus 8% interest on the outstanding balance.
Philip Chudy has had a long battle with Pictor International in an effort to
collect the commissions he was owed for the licensing of his photographs.
In making his claim he had to rely on figures that were contained in sales
reports issued to his personal account. The majority of the photographs
pertinent to this case are jointly owned and copyrighted with his former
artist partner who has a separate account with Pictor.
The Court ordered that all monies be paid before August 26, 1997. Pictor
made partial payment before the deadline and completed payments in September
1997. In addition the Court ordered costs to be paid by Pictor either by
agreement or upon Taxation (a process that is conducted through another
Chudy's saga with Pictor started in 1988 when he signed two separate 5 year
contracts with the agency covering different sets of photographs (his own
and those jointly owned with his ex-partner). In the agreement sales were
to be reported on the first day of the month after the month in which they
were made. According to the contract the photographers commission were to
be paid 90 days after the sales report was submitted.
(Editors Note: In this type of agreement commissions are paid to the
photographer even if the agency has still not collected from the client. Of
course, if the agency collects from the client in 30 days they get to
legally hold the money for another two months before paying the photographer
his share. This is a common method of paying commissions among European
agencies. In the U.S. the common practice is to pay photographers after the
fee has been collected by the client. The date when the sale was booked has
no relation to when the photographer will be paid.)
In the first year after Chudy signed his contract payments ranged from being
a few days to a month-and-a-half late. By 1990 Chudy discovered that a
pattern had been established and Pictor was not prepared to make regular
payments. He had to constantly call the agent to remind them that monies
had not been paid. Despite these calls, the length of time between the
reported sales and the actual payment for these sales stretched out longer
and longer until by late 1993 payments were being made to Chudy almost a
full year after the sales were booked.
At this point Chudy had lost total confidence in Pictor and he and his
ex-partner formally declared that his contract had been breached. They also
requested return of all Master Copies Transparencies that were being held
for safekeeping by Pictor.
Pictor's initial agreed to make the photographs ready for collection, but
upon notice of impending collection Pictor issued a statement banning free
access to Chudy, his ex-partner or their representatives to their premises.
Pictor ceased all payments to Chudy in late 1993, but continued to license
rights to the photographs, and to irregularly send sales reports. When
Chudy filed suit on April 12, 1996 Pictor ceased sending sales reports.
It then took a year-and-a-half of legal maneuvering, paperwork and research
on Chudy's part before the case was finally heard.
Through the legal discovery process Chudy was able to determine that Pictor
and its sub-agents had invoiced clients for a total of £259,619.99 to
use his photographs between May 1993 and July 29, 1997. Chudy had several
different agreements with the agent beginning as early as 1988 and his
commission ranged from 12.5% to 50% depending on 'joint or sole ownership,'
the size of the dupes and catalog placement.
By the time of the trial Pictor had made no attempt whatsoever to effect
payment (normally made by bank debit) for a period of approximately four
Chudy's claim was for half of the photographer share of sales made between
May 1993 and July 29, 1997. Chudy's share has now been paid, but no payment
has been made to his ex-partner. Chudy's view is that Pictor is separately
liable with respect to his ex-partner as "primary" copyright holder on all
the photographs in question, not least by virtue to sole copyright on all
the art-work which was ever used. Artists copyrights are more stringently
protected under English law than those pertaining to photography. Chudy
understand that Pictor has taken no action to resolve the outstanding claim
of his ex-partner.
As stated earlier, Pictor agreed to return the photographs of Chudy and his
ex-partner in 1993, but they only began to return photographs in the summer
of 1998. To date 35% of these photographs have still not been returned.
Chudy believes that none of the transparencies would have been returned had
it not been for assistance from the Association of Photographers in London
who collected the transparencies from Pictor and witnessed the detailed
contents of those packages which were supplied without inventories.
Pictor may have continued to make sales of Chudy/ex-partner's photographs
since 7/29/97 without the provision of full and proper accounts. No further
payments have been made.
Chudy claims to have seen evidence of additional uses in the U.S. and other
countries which have either never appeared on any of Pictor's sales reports,
or which appear to have been accounted for incorrectly.
In one case Uniphoto acknowledges that a cover use was made in the U.S. by
Bio-Mechanics Magazine. However, they apparently refuse to try to collect
for the usage because the magazine has since been sold by the previous
owners and Uniphoto does not want to irritate the new owners who are regular
Pictor is the parent of Uniphoto/Pictor which is headquartered in
Washington, DC and has offices in New York and Los Angeles.
According to English law plaintiffs in such cases are allowed to act as
their own lawyers. This is called "Litigants in Person". It is not unusual
for such persons to appear in the County Courts. At the discretion of the
Judge, a Litigant in person may receive the assistance of a "Mckenzie
friend" (who may be a qualified lawyer) on the day of the trial.
This is much the same as the small claims system works in the U.S. except
that this case was for a much larger amount of money and the legal issues
were much more complex.
Plaintiffs who act as "Litigants in Person" in the UK, and who win their
case, are usually entitled to collect reasonable fees for the time they
spent in preparing their case.
Chudy spent hundreds of hours during a period of more than six months
collating and analyzing the figures he was able to obtain with the aid of
the court's discovery process.
In order to collect these monies another hearing (the Taxation hearing) is
necessary and Chudy is in the process of preparing for that hearing which is
now set for the end of April 1999. Chudy cautions that it is necessary to
be extremely patient when litigating and it should be the last resort. He
say, "It should never have been necessary to take matters to court. There
was no defense in the end. This whole thing has been an appalling waste of
the Court's and everyone's time."
I am represented by Uniphoto/PICTOR and have had problems collecting payments from
them. I have had a friendly and personal relationship with the management since
I signed with them but with this news, the slowness of payments to me and other second
(and third hand) conversations about slow payments I am VERY WORRIED.
If any other Uniphoto photographers have anything to add to this...