By Phil Marsh

Court case won by railway author and journalist for copyright infringement over Alice the Little Engine from Wales book

Published: 20th November 2016

Well known railway author and journalist defends colleagues’ legal copyright protection

Well known railway author and journalist defends colleagues’ legal copyright protection in ‘War of Words’ Court case.

An unusual railway Court case was adjudicated on recently when a well-known established railway author and journalist discovered one of his manuscripts had been turned into a book without his prior knowledge.

Cliff Thomas, who estimates he has had over two million words published over several decades, brought an ‘Intellectual Property’ legal case, thought to be unprecedented in the normally uncontroversial world of railway publishing, against the publishers of a children’s book sold across the heritage railway network.

The children’s story book entitled ‘Alice the Little Engine from Wales’ was written 20 years ago by Mr Thomas and inspired by the restoration from dereliction of Hunslet 0-4-0ST ‘Alice’. A copy of the story was given as a ‘friendly congratulatory gesture’ to Julian Birley upon his purchase of the locomotive ‘Alice’ from original restorer, Chris Scott.

The book has now been withdrawn from sale, damages awarded and some costs met after the judgement where the defendants admitted a breached the copyright.

A very unusual twist in the matter was that like Mr Thomas, the defendant was Julian Birley is also well known figure in railway preservation. The defendant is chairman of the North Norfolk Railway and a director at the Bala Lake Railway while Mr Thomas has also held several similar voluntary railway Chairman’s positions. The co-defendant was artist Pauline Hazelwood and wih Mr Birley, admitted ‘acting in common purpose’ at the Royal Court of Justice on September 29.

Cliff Thomas told that it was not about the financial settlement but acknowledgment that his copyright had been infringed. He added he was saddened by the whole affair because in the heritage railway world, trust and integrity are the cornerstones of the movement and invariably centred on volunteer efforts.

What was it all about?

The case related to the copyright held in an anthropomorphised semi-factual story entitled ‘Alice the Little Engine from Wales’ written by Mr Thomas. This came into the Defendants’ possession and was then, without permission, utilised in production of their own similarly sounding book, entitled ‘Alice the Little Welsh Engine’.

The case was ended, avoiding going to full Trial, after Hazelwood and Birley undertook to sign a statement acknowledging their book infringed Mr Thomas’ copyright work. The letters signed by them to Cliff Thomas formed part of the settlement of his ‘Intellectual Property’ case in relation to the book published by Saddletank Books, with Mrs Hazelwood defined as the author.

Mr Birley’s name did not appear in the offending book but he admitted financing the publication and acting in legal terms what is known as ‘joint purpose’ with Mrs Hazelwood.

The settlement terms agreed also include: ceasing to sell the offending publication; surrendering all copies of the publication in their possession, and not in any way reproducing or selling any part of Mr Thomas’ copyright work. A payment was also to be made to Mr Thomas in settlement of the case.

Media pressure during the proceedings rebounds

Mr Birley had been prominently quoted in a national railway magazine in August this year stating: “This is a ridiculous case” and he was seeking “to have the case struck out as an abuse of the legal process”.

Addressing the Defendants’ Barrister at the September 29 Hearing, the District Judge emphasised Mr Thomas had a “very strong” case – words which must have been hard to accept for Mr Birley following his earlier published press comments. Mr Birley was accompanied in Court by legal professional David Morgan, former Chairman of the Heritage Railway Association.

They said:

Cliff Thomas said: “At the root of this case is a very simple issue: the right of any person be they writer, photographer, artist or other creative individual to hold possession of their own creative work and not to see it utilised by others without permission for their own purposes.

“Utilising my copyrighted work enabled Pauline Hazelwood and Julian Birley to produce a book which I do not believe they would otherwise have conceived in the form they did. Moreover, in so doing they deprived me of any realistic ability to publish my own work and receive due credit.

“The pursuit of this case has been time-consuming, expensive and harrowing – but it was essential to see justice done on a point of principle - crucial to anybody whose living depends on creative work and protection of their Intellectual Property.

“I wish it had never happened and it should never have happened. The options were to allow this to happen and lose the ability to see my own work published - or stand up and say ‘no, this is wrong, morally and legally’. There was really no choice.

"It gave me NO pleasure in bringing this case against Mr Birley who is a well-known fellow railway enthusiast, but breach of copyright and plagiarism is a long-established principle in English law. Words are my living, so it is the principle which was at stake here. As has now been established, my rights were breached.

“I don’t think I can recall encountering a situation in the railway publishing world where a professional writer faced no option but to go to the Courts to establish their rights to their own original work after someone – also widely known in the preservation world had taken that work and published it for their own purposes, knowing they had no right to do so and so breaching the original author’s copyright.

"There was nothing ‘accidental’ or ‘inadvertent’ about what happened in this case. For example, if someone takes a car and then re-sprays it another colour, it does not become their car. They would know exactly what they had done – and should not be surprised if taken to task by the law!

“Utilising somebody else’s copyright work -- their Intellectual Property -- by taking it and using it for themselves is not a criminal offence, but it is still contrary to English law, let alone any normal moral standard of integrity.

“By doing so, you are not only gaining a benefit for yourself, but as shown in this case, depriving the owner of the copyright the opportunity to then utilise their own work for themselves. Whilst the morality of such behaviour cannot be challenged in the Courts, the legality certainly can, hence the action initiated by me to protect my copyright.

“My story was crudely edited while retaining the wholly original interpretation and execution – known as the ‘architecture of the work’ in publishing terminology – and presented as Mrs Hazelwood’s work.

“Pauline Hazelwood, as an apparently established artist with an obvious interest in issues of copyright, should have been well aware that her actions were wrong. The story was intended to be enjoyed by children, with the underlying metaphor conveying the message that one should never give up. I never anticipated having to use my story to inspire my own efforts to see justice done, but it did and the message remains as it always had!

“As any writer, photographer or artist knows, their work is very precious to them. To have someone take it knowing they do not have permission and publish it for their own purposes is utterly unacceptable.

“The defendants could have easily sorted this out before it became a problem, but opted not to do so. Only when a District Judge sitting in the Royal Court of Justice dismantled their application to ‘set the case aside’ did they finally concede the game was up and agree to settle the matter before the case went to full Hearing.

“This case has cost me far more in legal costs than I have recovered thanks to Mrs Hazelwood and Mr Birley refusing to admit what they had done until we were literally inside the Court buildings. I always knew I would end up out of pocket, but you cannot put a price on principle.

Even after legal proceedings had commenced, Ms Hazelwood continued promoting the book as the author. Apart from the Bala Lake Railway who were advised of the issues, other preserved railways were unaware of the legal proceedings.

Many preserved railways have voluntarily offered to cease selling the book on a moral basis and is greatly appreciated by Cliff Thomas. Cliff also said that he would like to say a public thank-you to his wife for her support during the whole regrettable action.

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