Friday, July 01, 2011

Financial Times Lose the Battle of the Toy Soldiers





In September 2008 the picture desk of the Financial Times contacted John Tunstill, collector of model soldiers at his home in Italy, by email, requesting a series of high resolution photographs of a series of very specific lead-alloy model soldiers for use in the FT weekend magazine “How To Spend It”. Britains, Hanks, Johillco, Soldiers’ Soldiers were all required in specific uniforms and poses. The FT required captions for the photos, offered accreditation for the work and, once Tunstill agreed to provide the photos told him that they wanted them…… “yesterday”.

During the next four days the FT badgered Tunstill on five occasions by email, and about the same number of phone calls were made to determine the speed and progress of Tunstill’s work, and on the fourth day the photos were despatched. No reply or acknowledgement was received from the picture department, despite the picture editor, Susan Barton’s previous urgent requests.

On day six the photos with full captions and copyright notices were again sent to the picture desk. Nothing further was heard from Ms Banton for a couple of days, and then “Yes, pictures received, we’ll be in touch shortly”.

No touch, short, or long, was forthcoming.

27th October 2008 a verification note was received by Tunstill from the FT confirming name address captions etc., etc. And in November 2008, hearing no more, no touch, no thanks and no copy of the promised magazine, Tunstill submitted his invoice, which was un-delivered, lost, mislaid, ignored or whatever, but certainly not paid. In April 2009 Tunstill again asked for settlement, and received a reply from Ms Banton to the effect that as the photos were not used the FT had no intention of paying for them.

It later transpired that Ms Banton claimed that the photos had all been ditched because the article was foreshortened as the FT advertising department had managed to sell two more pages of advertising space, at up to £24.000 per page, so Tunstill’s pics were binned.

Tough said Tunstill, you ordered them, you must pay for them. You can’t take a takeaway meal back to Charlie Chan’s Chop- Suey Emporium just because you didn’t eat it. Tunstill again pressed for payment.

In May, Tunstill received a short response from the legal department of the FT rejecting his claim on the grounds of “not used, therefore no pay”. In June Tunstill, via his legal advisors, again wrote requesting payment, which was rejected on the grounds “that in our industry, if we don’t use the pictures we don’t have to pay for them”. Try using that argument next time you buy a tin of baked beans at Liddle!

In December 2009 Tunstill entered a claim in the small claims court in Lambeth, South East London, situated in the area where the office of the FT is based. The defence put up by the FT legal department stated that the photographs were never published, and that by proceeding with the claim Tunstill was causing severe distress to Ms Banton. Poor Ms Banton. Imagine the distress caused to Tunstill.

The court action was strenuously debated between the parties in the months leading up to the trial date. The FT, in order, solely to “clear the desk of this incident”, made escalating offers of settlement. Finally accepting Tunstill’s original account. But, due to an administrative error, the FT promised to pay the full amount in Pounds instead of, as requested, in Euro, obviously the people in the FT legal department weren’t too good at sums because at that time the Pound was worth about 1.3 Euro.

However this offer of payment was subject to a whole A4 page of terms and conditions, to which Tunstill said, “No”. Ah, they said these are standard terms of settlement, Tunstill said he was non- standard and repeated, “No”. The standard terms were revised, and, as Tunstill’s hand was trembling over the document of acceptance, the good fairy who always looks after toy-soldier collectors arrived with a copy of The Financial Times’ “How To Spend It Magazine”, which contained the truncated article on tin soldiers. Adequate, but nothing special. But, just a moment, that Indian Brave charging onto the page looked strange but familiar. Odd, curious, interesting. Tunstill looked through his vast collection of figures. He eventually found a similar, but different, warrior made in the early 1930’s by a German firm called Elastolin. However Tunstill’s Redskin was turning right in his saddle and the FT’s man was turning left. Curiouser and curiouser as Alice would have said. Tunstill pulled out the photos he has sent to the FT, and yes a very similar man, with the same coloration, and, strangely, even the same fleck of paint missing from his base. Tunstill reversed the photo he had sent in with his photo manipulation programme on the computer and bingo, the FT warrior. So the picture editor of the FT had lied to me! What a little tinker!

So, instead of accepting the FT’s offer of payment with the various strings attached, Tunstill sent them a “Cease and Desist Notice” outlining their infringement of his copyright by using his photograph, denying use, and refusing to pay for the use. What was more Tunstill claimed that the FT had altered the original image, by reversing it without his express authority and thereby had infringed his intellectual property rights. Tunstill required compensation and the return of all unsold copies of the magazine, wherever situated throughout the world, the elimination of all computer records of the offending image and an apology.

This was too much for the legal eagles at the FT and they immediately apologised for their oversight and passed the buck to a City firm, who swiftly negotiated with Tunstill, paid up and brought the whole affair to a close.

Tunstill offered some advice to the legal representatives of the FT, and he informed them that “When I was studying, my Master often used to say to me, “Tunstill, it doesn’t matter if you are acting for the defence or the plaintiff, whenever, in litigation, always check the opposition’s arguments because they can be forgetful, inaccurate and often less than truthful. But, Tunstill, even more, you must check your own witnesses’ statements at least thrice because they will be liars and perjurers, and if you get caught out by their untruths you will look *&%$£çò silly””.

A southern Italian phrase, more or less, “La vendett’ e un’cena miglior mangat’ quando e fredd’” which means, more or less, in English, that “revenge is a meal best eaten cold”.

So, fellow collectors, be warned, if you’re going to play with the big boys, get everything in writing and count your fingers after you have shaken hands with them.

John Tunstill

If you have, or know of a soldier publication please pass this on, it might just protect someone else.


John Tunstill has been a collector and manufacturer of lead-alloy model and toy soldiers for some 65 years, he is an architect, (www.propertiesumbria.com) now living in Umbria, Italy (www.lapreghiera.com) and has a collection of some 30 000 54mm model figures (www.soldierssoldiers.com).

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