The Small Claims Alternative

Posted on 9/28/1999 by Jim Pickerell | Printable Version | Comments (0)

252

THE SMALL CLAIMS ALTERNATIVE


September 28, 1999

If an infringement is small it may be more practical to seek redress in

Small Claims Court rather than to bringing an action in Federal Court.

A company scaned one of Davis Barber's pictures off his promo card and used it

in an ad. At the time he discovered the use he had not registered the

image. Consequently, he chose to sue for misappropriation in small claims court.

This avoided invoking federal law and a much more costly

and complex legal process of suing copyright infringement.

The infringer was a small roller hockey company. Barber's first step was to

contact the company's marketing department. They refused to pay, saying they

got the picture from a player's wife, and therefore didn't have to pay.

When Barber explained that the wife didn't have rights to release the picture

for advertising use the marketing executive became

argumentative and demanded to know how much Barber wanted for the use. As Barber

tried to explain how calculated he would calculate the license fee for such a use

the marketing executive interupted him, yelled "your never going to work for

Mission," and hung up.

At this point, as Barber says, "the gloves came off," and he became determined

to collect for this usage. After several months of bills and letters to the

company that were ignored, (and one more use of the picture discovered) Barber

filed in court.

Essentially, he treated the picture as a piece of property that was stolen,

rather than a creative work. He concluded that a judge might not buy a

laymen's argument about copyright law, but could easily understand the

concept of stolen and misused property.

While each courthouse has it's own small claims form, somewhere on it will be

a sentence to the effect of "defendant owes me the sum of _______,

not including court costs, because: (describe claim, date and location)

_______________________________________________."

  • In the first blank Barber put $5,000, which is the limit in small claims in

    California (this varies from state to state). You must be able to justify

    the whole amount, or the judge will either

    reduce it to actual damages or throw it out altogether. Thus it is

    important to have sent the user an invoice or settlement offer for the

    license fee. (If you triple you normal fee for a settlement offer,

    be aware that a small

    claims judge may not allow such penalties. Thus, it is better to wrap such

    additional compensation into the base fee.).

  • In the second blank he put: "August, 1998; October 1998; November 1998;

    Appropriation, misappropriation, conversion, infringement, theft of my

    property for advertising."

    The dates were when the ad ran. Appropriation is (all definitions according

    to Blacks Law Dictionary) The act of appropriating. Then, to appropriate is

    to "make a thing one's own; to make a thing the subject of property, to

    exercise dominion over an object to the extent, and for the purpose, of

    making it subserve one's own proper use or pleasure"

    The defintion goes on, but this is the most important part. They took the

    picture and used it for their own purposes.

    The definition of misappropriation is: "the unauthorized, improper, or

    unlawful use of funds or other property for purpose other than that for

    which intended." In Barber's case, the picture was scanned off a promo card

    and used for a purpose that he had not intended, or authorized.

    Conversion is: "An unauthorized assumption and exercise of the right of

    ownership over goods or personal chattels belonging to another, to the

    alteration of their condition or the exclusion of the owner's rights."

  • Then of course there is the infringement, and the identity of the photograph

    as a piece of property. The fact that by using it for advertising

    their product was all of the above stated things (appropriation, etc).

This strategy was not developed by a lawyer. Barber settled before trial

so there is no guarantee it will work before a judge or in your situation.

It is important to develop and write a simple timeline as to what

happened. It doesn't matter why or how, just that it did. Stick to the

absolute facts. Your likely to be asked by the judge in a very matter of

fact way "and then what did you do?", etc. It's helpful to know the

sequence and to answer everything directly.

Before you file, you need the name of the responsible person for the company

if the infringer is not an individual. This is usually the president, or CEO. This

information is found at the Secretary of State office in your area. In

California they charged Barber $6 to look it up and give him a printout of

the information. Aside from driving into downtown LA, the whole processs

took less than ten minutes to file.

Small Claims Court can be a hideous place to be all day. Judges also hate

being there. Ask for a trial date at the start of

a week, rather than a Thursday or Friday, after the judge has had several

days of petty or ridiculous cases to wade through. Get them while they're

fresh.

There is no substitue for registering your work with

the copyright office. Barber says it took him awhile to make it habit, but

it's easy once he had gone through the process a couple of times.

If you have questions feel free to e-mail Barber at: davis@davisbarber.com.


©1999 SELLING STOCK

The above copyrighted article(s) are for the sole use of Selling Stock subscribers and may

not be copied, reproduced, excerpted or distributed in any manner to non-subscribers without

the written permission of Jim Pickerell, the editor. For subscription information contact:

Selling Stock 10319 Westlake Drive, Suite 162, Bethesda, MD 20817, phone 301-251-0720,

fax 301-309-0941, e-mail: jim@chd.com.

Rules for supplying feedback


Feedback:

Tim Conaway

Barber's approach was clever. When I was an editorial director (i.e.,

business manager) for a publishing firm, we were sued in small claims court for

unauthorized use of an image. Unfortunately, the freelancers who had put

together the special edition in question were in Europe during this event. I

had no idea where they had obtained the picture, although most others had come

from "publicity stills" provided by entertainment companies at no charge as long

as the company name and project is listed in the caption or photo credit. Some

of these are available in shops in Hollywood for a few dollars each.

However, we had no invoice, letter or other backup. I was stuck with

representing the firm (lawyers cannot represent clients in California small

claims court) with no background on the item. My professional opinion was that

we should always get clear licenses, and pay for rights, but the company would

spend $500 to save a nickel.

The company's lawyers said I should argue that the case could not be heard in

small claims because the photographer claimed copyright infringement on the

small claims form, and copyright is strictly the jurisdiction of federal court.

In this case, the judge (a lawyer assigned to work this beat) told me that If I

pursued that line and he dismissed the case, it would mean I would give up all

right to bring the matter in another court. I tried to explain that I wasn't the

plaintiff, but he ignored the entire argument, made chitchat with the

photographer and his wife, who were mutual friends of his wife's brother, and

awarded them $500.

So justice was done, but technically the argument about federal jurisdiction

over copyright is correct (it's on the first or second page of the Copyright

booklet form the Library of Congress). However, the argument about misappropriation,

etc. is a beautiful way around the problem, and avoids all the complicated areas

of copyright ownership versus ownership of a picture, etc.


Feedback:

Waring Abbott

This was a good story that helps reinforce some of the best reasons

for going to Small Claims -- it is virtually immediate (no depositions,

interrogatories, or other lawyer 'business') and it is affordable (no retainers

or other huge expenses). I have been to Small Claims in NYC many times and won

each time except the first. Now that I insist on deposits and check out the

client thoroughly my trips have dropped off dramatically.

A few things were left out of the story. Here in NY you (and the defendant) have

two choices when your case is called: trial by "the court" (the judge) or going

directly out to an arbitrator, where your case will be heard that night. If you

(or your opponent) chooses the judge the case most surely will not be heard that

night or even the next time you appear. There are hundreds of cases on the

docket each night and usually only one or two judges. There are possibly 6-12

arbitrators (volunteer lawyers acting as "lay" judges). Having a case tried by a

judge involves a court stenographer and slightly more 'procedure' than the

arbitrator. A judge can only try perhaps two to five cases per night, so you see

where the backlog comes from. The cases tried that night will all be 'holdovers'

from earlier weeks, you rarely if ever see a 'current' case tried the night you

show up.

Why take one over the other? This is the critical difference: if you go before

the judge and one party is unhappy with the results he can appeal. That can

really mess you up -- here in NY there is no mechanism to ensure that the

appealing party is actually doing something. So you can win your case before the

judge and sit there for years waiting for action. You should know that no one

can force you to 'go out' to an arbitrator. If you feel more comfortable with a

judge and a transcript then that is your right by law. If you choose the

arbitrator the other party must agree to that as well -- you can't force him to

do it.

Finally, if your case is heard by the arbitrator there is NO appeal. You will

get a decision mailed to you in a few weeks and it will be final! Then you have

to deal with collection, a whole separate issue. All of this is covered in some

excellent books put out by Nolo Press.


Copyright © 1999 Jim Pickerell. The above article may not be copied, reproduced, excerpted or distributed in any manner without written permission from the author. All requests should be submitted to Selling Stock at 10319 Westlake Drive, Suite 162, Bethesda, MD 20817, phone 301-251-0720, e-mail: wvz@fpcubgbf.pbz

Jim Pickerell is founder of www.selling-stock.com, an online newsletter that publishes daily. He is also available for personal telephone consultations on pricing and other matters related to stock photography. He occasionally acts as an expert witness on matters related to stock photography. For his current curriculum vitae go to: http://www.jimpickerell.com/Curriculum-Vitae.aspx.  

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