You are not alone. It’s a daunting prospect, so much so that many of us will ignore those unpaid invoices, deludedly hoping that maybe, just maybe, the cheque fairy will appear with your long lost cash and all will be well again. If only.
The legal system may have become more transparent and accessible but you can still ending up losing more than you bargained for if you don’t follow the correct procedure.
Letter Before Action
Before issuing court proceedings you must send your debtor a “letter before action” – LBA – to give them advance warning that if they don’t pay up you will proceed with court action. That’s after you’ve tried other reasonable means to get them to pay. Countless phone calls and cul- de-sac conversations later, you can see no other way to get what’s rightfully yours other than to go through the courts.
A LBA is a exactly that – a letter – not a copy of an invoice with the threat of legal proceedings typed in small print at the bottom. That may well work in itself and you may have already done that to no avail. But, if you don’t send a LBA and steam roll in there with a court summons, you may have to fork out the court costs – even if you win. The courts like to think that you gave the defendant warning in the hope that a court hearing could have been avoided. An unambiguous statement of your intent is necessary. You could do this yourself, an example of a LBA and what it should include can be viewed here
Better still get a lawyer to issue one. A letter headed LBA from a solicitors firm has more clout, it shows you are motivated, shows you have the cash for legal assistance. But ‘cash’, that’s just it. Already skint with unpaid invoices and lawyer’s letters aren’t exactly cheap, are they? Well, how does £1.75 + Vat sound? Thomas Higgins, a debt recovery specialist, offer online services.
Register with them and you get all the information you need about debt recovery and the legal process in the post. They will send you a password and you can instruct them to issue LBAs online for just a couple of pounds. They claim an 80% success rate with LBAs. You do this from the comfort of your computer chair, in between a bit of unsharp masking. No hassle. If you get paid, you don’t do anything else, apart from happily cash your long overdue cheque (after noting the account details in case of later problems) and pay the solicitors of course. You will get a case update reminder so if you haven’t yet been paid you can instruct them to commence legal proceedings. They won’t do anything until you tell them. And that’s it. Maybe there is a cheque fairy after all.
So what about the other 20%?
Thomas Higgins won’t take on all cases particularly if not straightforward – they deal with debt, so if there is some underlying issue that could affect the claim, you must seek their advice – or (if DIY) from another legal source. It is well worth registering with Higgins anyway for the very informative guide to the court process they send you. If it is a straightforward debt and you use their services, all the charges and costs are clearly shown.
For us ‘not straightforward’ could well be copyright, licensing agreements and the myriad of contractual difficulties that can arise. Also, for those of us living in Scotland, Higgins can issue LBAs to English based debtors but they can’t raise a summons. You will have to DIY or find alternative legal representation. Still, you’ve done your LBA.
What if there is a copyright infringement? A potential client contacts you with a view to use a picture, you refuse them or they refuse you because of the quote but they use it anyway.
Raise your concerns with them first and if no middle-ground can be reasonably found, invoice them an appropriate fee and follow up with a LBA. It may all end there, clinically and incisively. If not, and you wish to continue with court proceedings, your debtor will lodge a defence which you will know about – how do they intend to defend the indefensible? If it ends up in the courtroom, the CDPA (Copyright, Designs & Patents Act) will kick in and you may well be awarded damages at the court’s discretion. Was there wilful intent? Was it a flagrant breach of copyright? What is awarded will also depend on you and how you’ve approached the recovery of the debt.
The point is this, for this example above anyway: treat a breach of copyright as a debt and in the first instance offer a retrospective licence as a means of settlement, use civil law and follow through the correct legal procedure. There is a chance it will be resolved without the need to go to court, but if it does, you can confidently display to the courts that you took all reasonable steps to avoid the courtroom by offering the defendant an open door to settlement.
So there are many factors to consider here, this is not an exhaustive ‘what if’ legal scenario and it is meant as a short, sharp tactic to retrieve your money with the minimum of fuss and costs for a clear cut case of someone nicking your pictures.
It is tempting to impose your own fine or damages when invoicing for use of an unauthorised photograph. BUT, damages are awarded by courts not photographers! Think about it first though before plunging in – if the defendant did not want to pay you £100 for its use, why would they pay 500 quid or a Grand? They may well put that invoice straight in the bin. Ok, you think, stuff them, send in your LBA. Like LBAs – the courts consider it legal etiquette that you gave them an opportunity to settle – the same idea applies at all times.
“Although you are not obliged to do so, it will usually be sensible, and save you time and money, to try to resolve the matter with the party you think has infringed your copyright. Indeed, in some cases it may be necessary to demonstrate to a court that you have tried to solve the matter by mediation or arbitration if you wish the court to consider awarding you the best available remedy including an award covering your costs.” (UK Intellectual Property)
The court may think your demands to be unreasonable then, too threatening and intimidatory, and may consider that this melodrama was partly down to you, not the defendant, and the £100 you may get back will go some way to paying off the court fees the court asks from you. It’s a risky tactic. Remember too that although you know they are guilty, the court doesn’t. You may well be a fraudster, intimidating this poor soul by dragging her into court and using the legal system to extort money from them. They have a right to defend themselves – “this invoice for £1000 came in the post and I didn’t know what to do. I would have given the guy the £100 for his photo there and then. I didn’t know my employee used his picture, I was on holiday. I tried calling him to talk about it but he just didn’t answer the phone”. It doesn’t look good does it, when viewed from the other side?
You may well be awarded damages but they will be offset against the court costs , AND more to the point you WANT to settle quickly anyway! So why be greedy (even though you have every justification to be angry and seek retribution, just keep it to yourself). That’s not to say you can’t invoice for more than the market value, just keep it reasonable and valid. There is no standard here but the NUJ guide for instance states to invoice for double the normal rate for unauthorised use. You can use that as a justifiable, valid back up in court, arguing that that is an accepted documented industry standard and you’ve not plucked the figure out of thin air. Your rights have been violated, a crime has been committed, the double fee is an offer to reach an out of court settlement. The court may not see it that way, but it would be difficult to consider it unreasonable and you’ve, hopefully, avoided getting the bill for the court’s decision!
Technically, you ought to bill for the £100 only, or your usual rate you would expect granting a licence prior to any infringement. That’s far safer but, because you have had your rights infringed, you could go straight for the jugular and aim to prosecute via the High Court instead. This is out of the remit here so hire an Intellectual Property lawyer and use the CDPA. The infringer may wish to settle, it would be foolish not to, and your lawyer will advise on a settlement – all legal fees + fee owed + some bonus for the grief. You may walk away with double your original fee but what a lot of hassle!!
For copyright infringement on a small scale
- invoice a legally defensible, appropriate fee
- contact them and follow up with a LBA
There is an 80% chance of success your costs are kept to a minimum and you have an element of protection should it all end up pear-shaped and in the courts. Go DIY to retrieve your money and/or seek further legal advice from there.
Copyright is a specialist subject – it won’t come up often in the small claims courts amongst the run of the mill contract disputes, and different courts may apply different criteria. One may not listen to anything you’re saying, instead apply his legal mind to every nuance and twitch. Who is the most credible party? Who is wearing a suit? The plaintiff or the defendant – one of them is lying, which one? The court’s decision may not be based on Law at all, he may not like the look of you! You may well have snatched him coming out of that sauna down by the docks and he’s recognised you! Anything could happen.
The strategy here is one to avoid all this hassle, avoid all the stress, reduce risk and to limit the costs. There are other options available of course. If you have the money employ an IP lawyer and if you are suitably motivated with boundless amounts of energy, go the whole hog, whack in a huge demand, seek an injunction, get heavy and go out your way to see them punished. Although, it may just be easier to just to believe in the cheque fairy 80% of the time.