10/09/2014
25th August 2014 the copycat case.
Mr Andrew writes the following;
( T.C. Managements long reply is added below )
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"We note that Mr Stewart has continued to make false and inaccurate statements regarding Debi Gliori’s book ‘The Tobermory Cat’. We reiterate than neither idea for, words and illustrations in or concept and title of ‘The Tobermory Cat’ was influenced in the slightest way or derived in any way from Mr Stewart’s page.... We would remind readers that there is no copyright in title, that many different books share titles without any difficulty and that the name ‘Tobermory Cat’ was not invented by Mr Stewart. Nevertheless we have repeatedly been prepared to offer compromises which would draw this matter to a close and which would benefit the town of Tobermory and not the pockets of lawyers. Our most recent is here: https://www.facebook.com/tobcat/posts/762887453726722 Mr Stewart however has ignored all such efforts and seems intent on maximising legal expense for what purpose it is difficult to guess. Yours sincerely Hugh Andrew"
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Dear Mr Andrew.
Rather than work as a fisherman, gardener or on a croft, I crofting ideas from the things I find around me. I am an artist and have produced paintings and films but since February 2011 I have been developing this playful evolving project which explores the uses of fame and celebrity. With that intention in mind I first considered creating a celebrity brick. Though the novelty of a celebrity brick appealed I chose the cat and not the brick because I thought it would be easier. My idea then grew to embrace various commercial possibilities including a massive global celebrity cat brand empire! In hindsight it may also have been possible to create a massive celebrity brick empire however even a charmless otherwise ordinary "Tobermory Brick", made famous, might again have faced the exact same arguments, justifications and legal threats as a celebrity cat would.
My work started in February 2011 and has featured photographs of four similar cats that play the part of the celebrity cat. I chose the name Tobermory Cat intentionally so Tobermory would benefit as a consequence of my promotional effort and work. I do not recall ever having heard the words Tobermory Cat used in Tobermory prior to my work - why would I? Elsewhere people don't normally feel the need to include the name of the town in which they see a cat, they also don’t find it necessary to identify the creature as a cat when looking at a cat! In Tobermory, to address a cat as Tobermory Cat without reason would therefore be unusual and deviate from the norm, it would be absurd - yet for some reason people do. I know of only one reason why the nomenclature Tobermory Cat became commonly used by locals and visitors alike, people associate ginger cats with the famous cat seen in my work. Mr Andrew, when you and Ms Gliori came to discuss your proposed book about the famous Tobermory Cat in December 2011, you came as a result of my existing work.
Mr Andrew, you are a publisher and I hold publishing in high esteem because you make it possible for authors to explore and communicate their ideas. I am engaged in that same line of work except I created not only the work but did the publishers job as well. Had I expected another publisher to appear 9 months into my project and announce that they were to merchandise my work I would not have bothered to created the famous famous Tobermory Cat. I would not have spent my time promoting Tobermory and Mull by creating content for both facebook and twitter, or spent money paying for adverts on facebook, paid for advertisements on tourist maps, posters on the ferry or put up posters around Tobermory to promoting my work and brand. I would then have avoided the ( vogon ) poetry of a writing forum and your equally unpleasant on-going expensive bullying legal threats.
Mr Andrew, you will recall our meeting (nine months after I began my project in December 2011) to discuss your proposed book about Tobermory Cat. It seemed that you had spotted the right ingredients; a harbour town recognised as the setting for a popular TV series, a ready-made story about a celebrity cat on facebook and a ready made market for a book about the famous Tobermory Cat however you will recall that I explained that the famous Tobermory Cat was my work and I intended to merchandising my work. I also recall Ms Gliori's reaction when told mine was a commercial effort; “Ooooooo, you mercenary thing!” a response which I understood to mean she did not recognise me as a professional artist engaged in my work. Due to Ms Gliori's standing as a successful illustrator, supported by a prominent publisher, I recognised that if you did as you intended I would lose my work and attribution of my work too. Ms Gliori kindly took the time to explain how creativity works; telling me that I should not try to hold onto my ideas. She went on to tell me of her annoyance that people stole her work; helpfully referring me to a video on youtube by Harlan Ellison titled "Pay the Writer”. The gist of this instructive talk seemed to be; Ms Gliori could exploit my work while she would object to people doing similarly with her work. I understood Ms Gliori better after her explanation.
Regarding copyright in a title; Tobermory Cat. Due to your referring to Tobermory Cat it was clear that you, like many others, had heard about my work so your intention was to produce a book based on my work. Having heard and turned down your offer to adapt my work into a book exclusively for young kids you then refused to acknowledge that I was responsible for the name becoming widely adopted! Mr Andrew, the cat you saw was no more responsible for my title or work than a whale was responsible for creating Herman Melville's title and work Moby-Dick. Leaving all the whales that now travel the oceans accompanied by Melville's title and ideas aside, you have been specific about which kitty was the subject in Ms Gliori's kiddie book. You identify a cat named Ledaig and saw a commercial advantage in taking a name which was already widely known and used by both locals and visitors to Tobermory ( later suggesting that by taking any other name you damage your work). Ms Gliori claims she chose the name, the name of the page which you directed her to Mr Andrew. While I appreciate that there may be no copyright in a title you have stated that my work was not responsible for the widely use name Tobermory Cat. I asked you to speak to the cat’s keeper at Browns shop and find out the truth; was my work responsible for the name becoming widely used? Despite the passing of the years it seems you have not found the time or you are unwilling to ask. You took the name of my work, a name which I had spent 9 months promoting, yet your generosity does not extend as far as recognising that you are exploiting my promotional effort.
Mr Andrew, when we met in December 2011 we discussed payment for use of my work. I declined your offer which amounted to putting my picture on the back of Ms Gliori's book and being allowed to sell Ms Gliori's book via this page. I turned down that offer yet you continued to ask what I wanted - you refused to hear the many reasons I gave for my decision - foremost being my wish to merchandise my work myself. Both you and Ms Gliori repeatedly claimed that by producing and promoting my work of facebook I give my work away. You have also stated that there is no copyright in title or ideas, again I give my work away. My concerns remain;
1/ by promoting and creating my work on facebook I essentially give my ideas away. I fully accepted the convention that there is no copyright in ideas - my acceptance was demonstrated when I suggested you take my ideas. I offered them freely.
2/ there is no copyright in a title. Again I fully accept this convention too.
So what is my complaint? Though I accept you may take my ideas and title independently of one another, problems may arise if you then take the defining themes, central character and my title at the same time. If the resulting work then overlaps and is confused with the original work you will effectively have taken all of my work. That is my complaint.
Mr Andrew, there are instances when two very similar works appear at the same time, chance simultaneous creation happens and one should accept this without complaint but chance has little if anything to do this situation. Mr Andrew, given your various statements, perhaps you will allow me to outline why I struggle to accept that Ms Gliori's book was anything other than based on my work. It seems that you believe you arrived at your idea independently of my work - sometime after I started the Tobermory Cat page. I am being asked to accept some pre-emptive or simultaneous claim because you came up with your idea. What was your idea? Your idea amounts to hijacking my existing work and I do not believe this is the normally accepted function of copyright. When you first commissioned Ms Gliori to do her book, Ms Gliori did not accept the commission having seen a cat, she accepted the commission having been directed to my page and told about my work. It seems counter-intuitive for Ms Gliori not to embrace my ideas and character because that was what she was commissioned to do. Mr Andrew you state; "that neither idea for, words and illustrations in or concept and title of ‘The Tobermory Cat’ was influenced in the slightest way or derived in any way" from my page. On those terms you wish me to accept that the resulting work was entirely Ms Gliori's effort. Ms Gliori states that she came up with the name " The Tobermory Cat" for her book. She also came up with the celebrity cat concept, she depicts a cat surrounded by paparazzi TV crews and photographers and a cat which promotes tourism. Ms Gliori presumably also came up with the idea to cast Tobermory as a Hollywood-like celebrity town as well? This coincidence of character and concepts is quite remarkably because they are the core Ms Gliori would have seen on my page. Despite your claims Mr Andrew, one might reasonable conclude that Ms Gliori took the name of the work she was drawing on - Ms Gliori has taken and adapted my work into a kids book. And finally; based on the discussions during early December 2011, rather than a work created independently of my work it seemed clear to me that your intention was to create a work which would fully exploit my work on facebook, my wider promotional efforts and the goodwill I had built up in the name Tobermory Cat. Despite this it seems you think a proclamation and a dismissal is enough - but your claim is not enough to change my mind.
Regarding my trademark for Tobermory Cat, my intention was to create a brand all based around the name Tobermory Cat. Mr Andrew, you demonstrate why I need to hold a trademark to protect my project and I intend to do so. If I allow you to remove my trademark then not only do I consent to your exploit both my existing and future work freely but you then give free reign to anyone else who also sees a commercial opportunity arising from my work. By your actions you set an example, you define what the acceptable norm is yet I do not believe you would countenance being used in the same fashion yourself. I may choose to work together with someone but my trademark prevents those prospective partners from dictating terms, forcing me to choose between working for them for free or abandon my work ( because they having deprived me of the rewards of my labour). That describes the present situation which you propose should continue. Mr Andrew, if Ms Gliori's work does not benefit in any way from the goodwill directly attributable to my work and the two works are not confused then there is no reason for you to challenge my trademark. I believe that your challenging my trademark tacitly acknowledges that Ms Gliori's work and my work are not as different as you claim. The works do overlap and Ms Gliori's book does benefit from the goodwill which I built up using my time, my money and my creative effort. If you do not recognise this then others may be better placed to judge if this is true.
It might be helpful if I describe some of the repercussions arising from this example of a failure of creative courtesy. Mr Andrew, you suggest that you are not prevent me from continuing my work but you fail to recognise that I am unable to promote my work without promoting your work. You remove the incentive for me to invest more time, money and imagination in my project. You appear intent on diverting the income which I had expected to receive into your business. The more I contribute the more you will benefit - this is not an equitable arrangement and I did not agree to it. Due to your standing in the publishing community it seems that you are intent on divert the wider commercial rights to Tobermory Cat; my work, into your business and under your control. Tobermory Cat was my creative effort and work until your arrival. Now Ms Gliori has claimed authorship of the work in many people’s minds so as a consequence I have lost control of my work. Ms Gliori has transformed my work into the spare appendix to her book rather than the source. By association my work is now confused with a work intended exclusively for very young children. My intention was to have my work appeal to a wider market, so due to Ms Gliori's book the novelty of my work is diluted and the market for my work is reduced. Mr Andrew, the daily discomfort you have caused me over the past years has been sufficient to have me spend my time exploring the creative foundations of my work rather than reaching for the sky. Despite trying, I still cannot find any over-reaching justification for your actions. I did not prevent you from producing your own work independently of my work but by disregarding my needs you have prevented my work from thriving and developing as I had intended. I have felt compelled to spend my time obstructing you. I believe this avoidable dispute started as small laps in creative courtesy but has become a substantial annoyance not only for both you and I but for the viewers of the page.
Regarding the compromise proposal which I repeatedly made during the summer 2012, I was uncomfortable with that faux-mediation process so my proposal has lapsed. Mr Andrew, you again claimed that I acted unlawfully. You incurred legal costs because you threatened me with numerous serious legal actions and challenges. You appear to be trying to use those oppressive legal cost as a means to forcing me off my work. I do not believe legal expense should be used to trump fair argument or facts. To then expect me to pay for the lawyers who you employed to threaten me would be over-optimistic! You are misguided if you expect me to consider agreeing to offsetting your legal costs against the value of my creative work. Please recall, I did not agree to your using my work and I did not object to you producing a work which would not be confused with my work - yet you and a bookshop owner appear to act as if you are entitled to unilaterally decide on terms, how my work is used and what best serves my commercial interests. You have damaged my work and the cost of making my work has increased. You are entirely responsible for those avoidable costs. My objections to the intrusion have been proportionate; I defended my creative property using the means I had available. Knowing of my own actions (what I have done rather than what you claim I am guilty of doing) why would you expect me to be moved by your judgments alone? We must put that long lapsed proposal to one side and start afresh and seek an equitable resolution. For the sake of clarity, any proposal should be agreed with me and not with a Hall committee. What I then do with income is for me to decide. Tobermory Cat is my creative effort so I can give a better account of the time, money and effort that has been required to make this work, not forgetting or acknowledging the generous contribution of ideas by followers of this page and the natural talents of the 4 similar cats that have appeared in this curious work.
In conclusion, should you feel the need to try again over a cup of tea ( perhaps get past this obstruction caused by a misplaced assumption that I must defer to a colonial style arrangement of your design) then perhaps we can move forward using normally accepted creative conventions, courtesies and business practices. On that basis it should be possible to address our different wants and needs. If you are fixed, you persist with your claim " "we reiterate than neither idea for, words and illustrations in or concept and title of ‘The Tobermory Cat’ was influenced in the slightest way or derived in any way from Mr Stewart’s page" then others will need to judge this Mr Andrew.
https://scontent-a-lhr.xx.fbcdn.net/hphotos-xaf1/v/t1.0-9/480594_561838473831622_1017824542_n.jpg?oh=dfe5fbb1c802587358e14473260da10f&oe=549C38EA
