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Broadchurch, Kudos Productions Dispute

I have asked Kudos Productions, the producers of Broadchurch for £3.800 for using my painting in episode 6 of the latest series without my permission. This is a breach of copyright law. They make the claim that it was incidental use and allowed under section 31 of the copyright act. I disagree and  will show how this is not incidental use but I believe is a subliminal message as part of the story line

They did offer me £1,500 the majority of which my solicitor managed to scoop up, with letters and emails.. In return Kudos wanted confidentiality. I objected to this for such a small amount of money from a production that was going world wide, video's box sets and more. I offered confidentiality for £3.800 knowing that my solicitor would try and claim a good chunk of that or I would go public. They turned me down so I went public.

I thought it right that other artists were made aware of the practise of abusing section 31 of the copyright act. Also I was incensed that Kudos accused me of being opportunistic. When indeed it was they who were being opportunistic in using my art work to subliminally make implications to their story line.

Kudos Productions and Endemol Shine Group did not respond to my final offer of £3,800 and so after 4 weeks I sent the story to The press.

It was published in the Mail on Sunday, and was on Breakfast TV. The Times and the Mirror on the Monday, The Sun on the Tuesday, Progressive Greetings, an online IP publication.

The Mail on Sunday claimed that most artist would be grateful if their work was seen in a major production.

Unfortunately there are some new and or struggling artists that are grateful. I have been there - when I started out 25 yrs ago I was also foolishly grateful - and I can say it does not bring in business. It's a con of an argument. I don't need my art to be seen on TV. I have sold over 65,000 originals and have a successful greeting card business.

................................................................

After to press stories I suggested to Kudos that they may like to make a generous donation to my charity "Naturezones Willife Education Trust". THUS FAR THEY HAVE DECLINED (11/9/17)

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Chain of original emails prior to solicitors letters - these can be found under the pictures

Really good to finally chat in person just now Angela. Thanks greatly for your time. I appreciate you giving consideration to our proposal of a £500 buyout. I appreciate how it might have appeared, but your painting was genuinely not the intended focus of the shot in which it appeared. I very much hope we can find a way through. Please do call me on my mobile if easier to discuss, when you're ready: 07812363213

 
All my very best,
Dan 

 

 
On 18 Apr 2017, at 18:48, Angela hewitt <angela.hewitt@btconnect.com> wrote:

 
hello Dan, There is no rush. I am not the easiest person to get hold of via phone. My land line is 01983 296110 early am or evenings. Mobile 078877 83222 (don’t use voice mail I never respond and don’t always carry it with me anyway). Thursday might be best day to get hold of me. Tomorrow I am all tied up.
best wishes Angela
 
From: Dan Winch
Sent: Tuesday, April 18, 2017 1:26 PM
Subject: Re: Broadchurch - Painting
 
 
 
 
Dear Angela,
Would it be possible for me to call you perhaps? Sincerest apologies for my delayed reply - just back from holiday!
I too would very much like to try and avoid things becoming too legal & complicated. Really hoping I can help sort swiftly.
All my very best,
Dan
 

On 11 Apr 2017, at 20:32, Angela hewitt <angela.hewitt@btconnect.com> wrote:

 

Hello Dan, thank you for your response.

I am happy to discuss a retrospective agreement but first I need to know the following:-

1) I assume the programme will go to other channels UK and worldwide, possible already agreed via license, syndicate, DVD etc. Can you give me an idea of numbers

2) I understand UK viewers amounted to approx 7+million. Please confirm

3) In confidence how much will remuneration be for the episode – this may be public knowledge?

4) Roughly for how many years will the episode be released and viewed

5) Your legal department will cover all costs and paperwork – please confirm this

I do have an IP solicitor however, as little is in dispute apart from perhaps the fee we may be able to come to some agreement independently.

Once you have responded to my requests we can discuss a fee. I would like to say now that I would prefer to settle for a one off payment rather than the rigmarole of royalties.

I have to say that in the light of the subject matter of the drama the image was rather symbolic!

 

Many thanks for your co-operation

With Regards

Angela Hewitt

 

 

 

 
From: Dan Winch
Sent: Monday, April 10, 2017 6:30 PM
Subject: Broadchurch - Painting
 
Dear Angela,

Please forgive me for my delayed reply with getting back to you.

I was forwarded your email regarding the Cockerel painting (image attached below).

 
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Our art dept had received confirmation from the owner of the painting at the time of checking clearance, that no further clearance/approval was required. On receiving this confirmation they proceeded with leaving the painting in place as set decoration.

Please accept my apologies on behalf of all involved for the misunderstanding here. I assure you we hadn't deliberately intended to avoid your copyright approval.

Could I ask your retrospective approval if possible Angela? We will of course agree a fee with you for this.

Thanks ever so much indeed for your understanding.

There will be paperwork I need to follow up with, but I'll loop in our lawyers at Kudos once I've hear back from you & we've hopefully established your agreement.

All my very best wishes,

Dan

Dan Winch | Producer | Broadchurch III


 

 

The original setting before being staged

My painting adjacent to suspected rapist

Shot travels past my painting

My painting centre stage

Actress Coleman in the background. This scene was totally unnecessary. She had the phone in her hand to make the calls as she was leaving the building

Initially I sent cease and desist letter to Kudos Productions and to ITV the broadcasters of the drama.

21/4/17

Dear Sir

Bantom Cockerel - original painting (the Work) by Angela E Hewitt (the Artist)

On April 4th April 2017 Kudos Productions were made aware that I am the owner of all copyright subsisting in the Work which is an original artisitic work by myself the Artist and which is protected as a copyright under the provisons of the UK copyright, designs and patent act.

You broadcast the Work which shall be refered to as the “Infringing Work” in episode 6 of Series 3 of Broadchurch broadcast on ITV on 3rd April 2017.

Accordingly you are hereby directed to cease and desist all copyright infringement.
As my consent to use the work was neither sought nor granted I must inform you that you are in breach of copyright. In terms of Copyright Statutes I am entitled to an injunction against your continued infringement. In the circumstances I hereby demand that you immediately pay a license fee of £20,000 (Twenty thousand pounds) in consideration of your exploitation of the Work.

I expect your acknowledgement of this letter and your response to my request by 27th April 2017. Failure to respond by this date will result in my seekeing further legal remedies.

I attach evidence of the copyright infringed Work.

My solicitors letter of allegations and their response below...

Endemol Shine Group Limited T/A Kudos

12-14 Amwell Street, London, EC1R 1UQ

By post and email: info@kudos.co.uk

Dear Sirs

Our Client: Angela Hewitt

Copyright and Moral Rights Infringement

We act for Angela Hewitt, an artist based on the Isle of Wight. Ms Hewitt creates very particular and recognisable paintings, particularly of farm animals and wild birds. These paintings are all created by Ms Hewitt employing her skill and labour.

Our Client’s Rights

Our client is the owner of the copyright in a painting of a Cockerel, (‘the Work’) representations of which are attached at Schedule 1. The Work incorporates our client’s iconic use of colour and brushstrokes to create a vivid image of a cockerel contrasted against a white background.

The Work was created by Angela Hewitt using her skill and labour. The Work is one of many simlar original paintings first created in 1996 and first made available to the public at a craft fair at Sandringham the same year. Ms Hewitt is a British citizen ordinarily resident in the United Kingdom.

Copyright arises as the Work is an original artistic work within the meaning of s.4(1)(a) of the Copyright, Designs and Patents Act 1988 (‘CDPA’). The facts set out above qualify the Work for copyright protection pursuant to the requirements of Part I Chapter I of the CDPA. Our client also has the moral right to be attributed as the author of the Work and to object to derogatory treatment of the Work further to s.80 of the CDPA.

Infringement by you

It has been brought to our attention that you are displaying, without the permission of our client, the Work on your Broadchurch TV programme as shown on ITV contrary to s.20 of the CDPA. The Work was displayed in what was purported to be the house of the character portrayed by Lenny Henry, who at the time was under arrest on suspicion of rape. The Work was shown during episode 6 of the third series of Broadchurch. This episode was watched by approximately 7.58 million people in the United Kingdom alone within the first 7 days of broadcast. This does not take into account later viewings and so the actual figure is likely to be higher.

The Work features very prominently in some particularly troubling scenes (examples of how the Work is featured are included at Schedule 2) and the symbolism of displaying a cockerel so prominently within the context of those scenes, and indeed an entire television show, centred on the investigation of a rape cannot be overlooked and is surely deliberate. The cockerel is clearly depicted as connotative of the character whose home it is in, this being someone who is a stalker and suspected rapist.

In all of the circumstances this use cannot be considered incidental. As previously mentioned the symbolism of a cockerel painting in a scene where the house of a rape suspect (who is also revealed to be ‘stalking’ the victim) is searched by police is unmistakeable. It is also the case that the Work is featured in a gratuitous manner. In the scene the camera pans slowly past the Work to focus through a window on a female detective speaking on the telephone. This scene was unnecessary, adding nothing to the narrative arc and can only have been included in order to convey a symbolic, subliminal message. You have taken the deliberate decision to associate the Work amongst a wide audience with the themes of rape and stalking. This is undoubtedly a derogatory treatment of the Work and is therefore a breach of our client’s moral rights in the Work. This also constitutes an act of primary infringement of our client’s copyright.

As stated above, no permission was sought for use of the Work, and if permission had been sought our client would not have allowed it. Our client strenuously objects to the Work being used in this context and feels that her creativity has been abused.

Knowledge

Your knowledge that the Work was protected by copyright is beyond doubt, as you have previously acknowledged in correspondence with our client, and you have failed to take any or any reasonable steps to ascertain the owner of the copyright in the Work. You have confirmed to our client that as it was not immediately apparent who had created the Work you decided to simply use the Work without permission. This is despite the fact that our client is a very well-known artist and a reasonably quick search of the internet would have confirmed our client as, at least, a potential author of the Work. This confirms that your use of the Work was a flagrant breach of copyright and our client reserves the right to pursue you for flagrancy damages.

The explanation provided by your representative that they simply decided to leave the Work in situ, even though they were aware that they did not have permission from the copyright owner to use the Work is also not accepted and confirms the flagrant nature of the breach in this matter. Our client has also been deeply troubled by the abuse of her moral rights.

We repeat that our client is a very well-known artist. Since 1996 she has sold in excess of 50,000 original watercolours all have been signed and labled. She sells her work through County shows such as the Devon County Show and the Royal Cornwall county show. Paintings very similar to the Work have always been available. She has sold her paintings at Darts Farm in Devon, adjacent to Dorset, for over 10 years and still does. Her website has been promoting and selling original cockerel paintings since 2002. Her art work is also sold through Beauliue Fine Arts, Hampshire, Holroyd Gallery, Scotland, Le Strange Barns, Norfolk. In the past she has sold her art work with a similar cockerel always available (it is a best seller) at a wide range of shows including Hampton Court Flower Show (5 times), Tatton Park Flower Show(5 times), Windsor Horse trails (3 times), Badminton (8 times), Blenheim(8 times) and Burleigh Horse shows (10 times), Devon (6 times), Royal Cornwall (8 times), Harrogate (3 times), Royal Highland Agriculture show (12 times), Scone Game Fair (5 times), The Game Fair (15 times), Country Living Magazines shows (15 times) and many others not icluded in this list. It would not have been a difficult task for you to ascertain that she was the creator of the Work. In 2002 she set up a greeting card company and has sold greeting cards depicting her art work to retail outlets all over Britain. She has also sold a range of merchandise depicting her art work inlcuding teatowels, aprons, placemats, coasters and ceramics. Her work ahd been wiidely publicised in NEC Trade show magazines and Greetings Today. You made a conscious decision not to seek out this information and not to seek our client’s permission for use of the Work.

Our Client’s Remedy

Our client is entitled to a final injunction to prevent you from continuing to display the Work within the Broadchurch TV programme. In addition our client is entitled to be compensated for your activity and reimbursed its legal costs accrued to date. Our client is of course aware of the massive expense that you will be put to should you be required to remove the Work from all future DVD releases, repeats etc of Broadchurch which will no doubt have a huge commercial value. Our client is also acutely aware that the infringement and derogatory treatment of the Work has already been viewed by many millions of people both in the United Kingdom, and indeed worldwide.

In light of the above our client is prepared to make a one time offer to yourselves to resolve this dispute at this early stage. You will pay our client the sum of [£10,000 Ten Thousand Pounds]. Though this is necessarily a broad brush figure we can advise that it comprises of; a retrospective license fee for use of the Work, damages for infringement of the Work, flagrancy damages for infringement of the Work as you were well aware that our client’s permission was required to use the Work and damages for breach of our client’s moral rights in the Work. This offer is made on an open basis so as to be express as to our client’s desire to resolve this issue now before further damage is done to her work and reputation.

In return our client will allow the Work to continue to be used on the Broadchurch TV programme. Should this not be acceptable our client shall pursue this matter and, as well as damages, shall seek an injunction against further use of the Work which will require you to remove the Work from all future showings of the Broadchurch TV programme. We hope that this is not necessary but we must stress that our client is incredibly concerned by the associations which will now be made with her work.

We therefore require that you enter into the attached undertaking within 14 days of the date of this letter failing which our client will have no alternative but to commence proceedings against you without further expense.

All of our client’s rights are expressly reserved especially in relation to costs, damages and interim relief.

Yours faithfully

Response form Kudos Productions - click to enlarge

My response and rejection of their offer

Dear Sirs

Our Client: Angela Hewitt

Your Client: Kudos (Broadchurch) Limited

We write further to our letter of 23 June 2017 and your letter of 29 June 2017.

Our letter of 23 June 2017 was quite clear in that our client was willing in principle to accept £1,500 in settlement of this matter but that your purported offer was not in fact an offer capable of acceptance due to the fact that it did not expand upon the terms of settlement your client would seek to impose. Our letter made it clear that the purported offer could not be accepted until our client had considered the terms of settlement your client wished to impose. There was therefore no agreement concluded at that stage.

Our client does not accept your client’s proposed terms of settlement, namely the requirement for confidentiality, contained at paragraph 5 of your letter of 29 June 2017 and at clause 4 of the ‘Standard Terms of Agreement’.

Our client denies your assertion that she was being opportunistic, indeed this is an accusation that is best levelled at your client who in a storyline revolving around rape saw an opportunity to use the Work to relay a subliminal message. Subliminal messages are in this day and age a common instrument used in marketing and your client used the Work to represent the theme of their story. The sublimal message conveyed by the use of the Work in this context is supported by the use of similar pictures in other mediums. Another example is in the play ‘Ghost Train’ where the word cockerel was used to convey the virility of two male characters.

It is further denied that your client’s use of the Work was incidental. The Work did not feature as a background picture, rather it was the only image that featured prominently on the screen for a period of 3-4 seconds. The Work was deliberately placed in a scene showing the lead female character through a window where the only images on screen were the lead female character and the Work. As we have previously stated, the scene in which the Work was placed added nothing to the narrative arc of the story.

Our client remains extremely upset by the use of the Work in this context and also by your claim that she is simply being opportunistic in this matter. For this reason our client cannot accept the £1,500 you have offered alongside a duty of confidentiality being imposed upon her. If your client wishes for the confidentiality clauses to remain within the agreement our client will require payment of £3,800. This amount more accurately (though by no means adequately) reflects our client’s loss in this matter and for payment of this sum our client will agree to be bound by the confidentiality provisions your client seeks to impose. Should this not be acceptable our client shall instead seek to publicise this matter.

In anticipation of your agreement to the above our client has amended and signed your letter of 29 June 2017 and the attached ‘Deal Terms’. Please confirm if these are acceptable and forward the settlement monies by return. Should these not be acceptable our client will be entering into no further correspondence in this matter.

Yours faithfully

 

Copyright: Angela Hewitt © web site created 2000

Padmore Lodge, Beatrice Avenue, East Cowes, Isle of Wight, PO32 6LP, UK  (Not open to the public. Please go to show dates and venues to view and/or purchase paintings)

Tel/Fax: UK 01983 296110     or   angela.hewitt@btclick.com