©autionary Tales: Of Hoffman

Tale One
In October of last year photographer David Hoffman successfully
prosecuted London Borough of Tower Hamlets’ Councillor Barrie Duffey
(Liberal), for distributing a leaflet which violated Hoffman’s
copyright. The leaflet is not a grand affair: a single sheet of paper
bearing a montage of photographs, press clippings, political slogans
and text referring to the photographs. ‘Are you prepared to pay this
man’s poll tax?’ it asks. ‘This man’ was Tower Hamlets Councillor Phil
Maxwell (Labour) who is represented on the flyer by a photograph taken
by Hoffman. The original photograph had been taken in April 1987 when
homeless Bengali families had occupied Tower Hamlets Town Hall. The
photograph, which shows Maxwell apparently struggling with a police
officer, was subsequently reproduced in the London Daily News crediting
© David Hoffman.
A month later a Liberal Focus flyer was put
through doors in Tower Hamlets carrying a copy of the Hoffman’s Maxwell
photograph – apparently lifted from the Daily News. Hoffman then wrote
to Duffey, who as Liberal agent was the publisher of the flyer
including the photograph, telling him that reproducing the image
without permission was contrary to the Copyright Act of 1956 and that
he should not use it again. He enclosed an invoice for £50 + vat,
clearly marked as being for one photograph for one use.

By Aug 1987 Hoffman had had no response from Duffey, so he sent a
reminder threatening legal action within 14 days if the invoice was not
paid. After a series of letters, Hoffman took out a Default Summons at
Bow County Court claiming £57.50 plus court costs.

He used the simple Small Claims Procedure SCP: for amounts owing
under £1,000 anyone can sue or ‘claim’ for a County Court’s Order to
pay up, even for a breach of copyright as in this case; a ‘default
summons’ application form is freely available from local County Courts
and, when filed, a fee is payable of about l0% of the amount claimed.
The court sends a copy of the summons to the defendant as it did in
Hoffman’s case against Duffey. The majority of people pay up on receipt
of the summons. Duffey did not. A default judgement hearing was held
before a judge, who gave judgement in favour of Hoffman ordering Duffey
to pay £64.50, the original amount plus the 10% court costs. Hoffman
then went about getting his money back. (The various procedures for
this are outlined in a useful pamphlet entitled Enforcing Money
Judgements in the County Court, which is available free from local
courts; the procedures initially involve threatening the use of
bailiffs, using them, and a verbal examination at court.)

In Hoffman’s case, the threat of enforcement was enough to get
Duffey to pay up £86.25 on June 21 1988 the full amount now including
the enforcement costs. Such a verbal examination at court involves the
defendant answering questions under oath from the Judge about their
financial circumstances. ‘Its very useful,’ says Hoffman, ‘because you
don’t need to turn up at the court yourself you can send in questions
yourself by post and the Judge can ask them. Very useful if you’re
busy.’ End of Tale One.

Tale Two
Hoffman and his fellow residents of Tower Hamlets believed they had
seen the last of his Maxwell photograph. But on May 1990 a version of
the same photograph appeared in another Liberal Focus leaflet again
published by Duffey, again without Hoffman’s permission. Hoffman wrote
to Duffey once more, restating that he owned copyright in the original
photograph, reminding him of the previous misuse and asking for
information on the print run. When no reply came. Hoffman sent a
recorded letter asking Duffey what action he intended to take, and
threatening legal action if he did not respond.

In the interval between these two incidents the new Copyright,
Designs and Patents Act of 1988 had come into force (on Aug 1 1989),
which now governed the apparent second copyright breach of May 1 1990.
The new Act makes it easier to bring criminal prosecutions against
copyright infringers. It also made it easier to prove, and win, such
cases and made penalties stiffer. Hoffman decided to use this route,
partly because of the greater sanctions available including the threat
of a criminal record for Duffey.

Hoffman engaged the services of Stephens Innocent, solicitors,
specialising in artlaw matters, to act on his behalf. On Jun 3 1991 a
summons was issued, this time by Thames Magistrates Court. This was
done by laying an ‘information’ (a document briefly stating the
copyright offence and the relevant section number of the 1988 Act)
before a Magistrate and asking the Court to issue a summons requiring
the defendant to answer the charges on a date fixed by the Court. The
summons had to be given to the defendant, Duffey; no easy task and one
that in this case after several attempts by Stephens Innocent was taken
on by the Hoffman personally. He succeeded on 31 May 1991. (Unlike
civil cases, criminal proceedings can only be conducted in a
defendant’s absence if the court is satisfied that he or she knew of
the hearing date).

On June 5 1991 at the Magistrates Court, Duffey appeared and waived
his right to be tried by Judge and Jury in the Crown Court. Some
copyright offences in the 1988 Act are triable in the Crown Court where
after conviction penalties can be imposed which are much greater than
are available to Magistrates – guilt or innocence is decided by juries
in the Crown Court but by Magistrates in their courts. Defendants are
liable on conviction to a fine and/or to imprisonment of up to two
years after Jury trial; six months and/or a fine of up to £2,000 by the
Magistrates. In either court, the defendant may be ordered to pay
compensation and the prosecutor’s/victim’s legal costs. Duffey pleaded
not guilty before the Magistrates and the case was adjourned for trial.
The trial took place on Oct 15 1991, Duffey was found guilty of
distributing pamphlets containing an infringing copy of Hoffman’s
copyright photograph ‘otherwise in the course of business in such a way
as to prejudicially affect the complainant, contrary to Section 107(c)
of the 1988 Act’. Duffey was ordered to pay a fine of £200,
compensation to Hoffman of £150 and to pay prosecution (Hoffman’s)
costs.

Epilogue
In the second case under the new Act, success had depended on
Hoffman being able to prove that the photograph Duffey had re-used was
an infringing copy of a copyright work; that copyright subsisted; and
that the copying was without the licence of the copyright owner, and to
prove that Duffey was aware of all the circumstances. The circumstances
of Hoffman’s previous judgement in the County Court strengthened his
case considerably. He also had to prove that the defendant had
infringed copyright by making or dealing with infringing copies by any
of the alternative ways set out in Section 10 of the 1988 Act. These
include:

  • making for sale or hire;
  • importing into the UK for private or domestic use;
  • possession in the course of business with a view to committing an infringing act;
  • selling or letting in the course of business;
  • offering to sell or let;
  • exhibiting in public;
  • distributing;
  • distributing otherwise than in the course of business to such an extent as to affect prejudicially the owner of the copyright.

Duffey was convicted on the last of these types of criminal
infringement. Today, Hoffman is not sure whether he would use the
criminal procedure again, unless the infringement was particularly bad.
‘Proving something beyond reasonable doubt is so much more difficult
than the balance of probability, as it works in the civil courts, which
is relevant for the majority of cases that I would have to deal with.’
What he means by this is that in criminal cases the court has to be
satisfied by prosecutors so that there is no doubt of any substance.
Whereas in civil cases, plaintiffs merely have to satisfy the court
that they are probably right in law and in fact. Although it is
evidently easier to win a case in the civil courts, use of criminal
proceedings – or the threat of them – can, and usually does, cause
infringers or would-be infringers to stop their unauthorised use and/or
to pay up. Criminal proceedings offer swifter and cheaper remedies for
infringements coupled with the obvious threat that a criminal record
may be acquired.

As copyright owner/makers become more familiar with these new and
tougher copyright laws, potential infringers’ reckless disregard in
pursuit of profits or other benefits from unauthorised reproduction and
merchandising of visual imagery, will give way to a more cautious and
respectful acknowledgement of maker’s legal rights.

© Henry Lydiate and James Odling-Smee 1992

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This article is from the Artlaw Archive of Henry Lydiate's columns published in Art Monthly since 1976, and may contain out of date material. The article is for information only, and not for the purpose of providing legal advice. Readers should consult a solicitor for legal advice on specific matters. Artists can get free online legal information from Artquest.