Legal Question in Intellectual Property in Tennessee

Royalties not paid. Breach of contract and punitive damages

I have done work for hire (art works) for a company who paid me a small fee up front for the original art with the promise of paying me a certain amount for each print sold thereafter. We signed a contract and in that contract I gave the company all rights to my work.

Because they are not paying me royalties, what can I do to make this company CEASE in selling my art prints or PAY me what is legally and morally due me?

This company is also using my name in their advertising (which I never agreed to). I do NOT want them using my name EVER in their advertising!

They sell on Ebay so I know of the sales in which I haven't been paid. They even sent me a check for royalties that bounced to rub my nose in the fact that they aren't going to pay me royalties for my work and they're proud of that.

I am disabled due to health problems, which they also know. I don't have money or a lot of energy to fight them which they also know. It's making me extremely angry and frustrated. What can I do about this?

Thank you for ANY assistance and/or advice you can give me!


Asked on 7/14/05, 9:44 am

2 Answers from Attorneys
Lawrence Graves Coolidge & Graves PLLC

Re: Royalties not paid. Breach of contract and punitive damages

You might try a more practical solution before embarking on the whole legal process route: contact eBay's fraud department and tell them that this seller is selling infringing works. eBay has a strong anti-piracy policy and may well shut them off.

Before taking the above approach, you should consult with an attorney, show him a copy of the WFH agreement that you signed, and ensure that you are on solid ground (i.e., that you can properly terminate and revoke the copyright assignment so that copyright ownership reverts to you).

Best wishes,

LDWG

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Answered on 7/14/05, 10:40 am
Lee Kim Tucker Arensberg, P.C.

Re: Royalties not paid. Breach of contract and punitive damages

Pictorial, graphic, and sculptural works (this category includes art-works in general) do not fall within the work-made-for-hire doctrine with respect to specially commissioned works (i.e., done on an independent contractor basis). The relevant section you want to look at is at 17 U.S.C. 101 which defines the "work-made-for-hire" principle.

Accordingly, the copyright interest might not have been transferred to that company. They may be infringing on your copyright interests. And, provided there is some sort of implied or express, enforceable contract regarding the royalty payments, then there is perhaps a breach of contract action as well.

It costs a lot of money to litigate. But, as the previous poster said, going through EBay is advisable. Also, perhaps a cease-and-desist letter from a local attorney (in your state) will "scare" that company from doing more harm.

In any event, good luck.

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Answered on 7/14/05, 4:39 pm


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