 Julie Wall |
I think we got the shaft. or Live and Learn... Ok, please don't anyone say we are stupid. We already know this. Condensed story. We are getting started in portraits. Friend & I got a shoot for a guy that is releasing a new cd. (Local artist hoping to make it big(ger).) He paid us our session fee. Said we would get some referals from him. He told us he was in a hurry to see some images. We spent all weekend selecting the best 150 shoots of him and his people. Rather than retouch and crop 150 images and put them on the web, we reduced them to a ridiculously low res and put them on a proof CD (apparently not ridiculously low res enough), and dropped the CD off to his office the following monday with a letter that stated the images were unretouched and that we needed him to contact us when he'd made his selection(s) and we would color adjust and fix the boo-boo on his head per his instructions, and proceed from there. Fast forward one month. My friend stops by his office on an unrelated matter and runs into the gentleman, who was very excited to tell her our names are going to be on his cd, and he has lined up some more shoots for us. Our images are going to be on his cd cover. First thing I thought was, "hey! he was sposed to get with us to let us know what he wanted and talk about pricing." and her first thought was, "OMG, he used unretouched images and that's so not cool". All I could think about was licensing. Ok, so we know several things. Even low res can be reproduced. Trust NO ONE. Watermark proofs. Get an agreement in writing so as not to get shafted again. Upload proofs to website with right click protection...the list goes on and on. But does anyone think we might have ANY recourse here? Or are we just kinda horked, live and learn, experience is the best teacher? My first thought is to write the man a receipt and state it was a charitable donation (he's a gospel singer with a ministry) and deduct it on taxes as such, or just write it off as a loss? Any thoughts (besides we were naive?)
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Todd Bennett |
Julie, What's this worth to ya? How much do you stand to make, or loose? Are you willing to take it to court and if so, what if you loose? You don't have a contract or written agreement! The only person that can tell you if you have any recourse at all is an attorney. If it is worth fighting for, then seek professional help.
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Todd Bennett |
By the way, you can try a cease and desist letter with threats of attorneys and court; but, you better be prepared to go through with it in case they call your bluff. You could also try sending them a bill for the photos explaining what they have done is wrong. A lot of times they are willing to pay; but, be prepared for the worst.
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Julie Wall |
What really sucks is that this guy works for the same day job employer and we had some verbal agreements, but (enter stupidity here) you can't prove that in court. I'm to the point where I feel like, ok, we did someone a favor, got hosed, no more, but to go after the guy may cause more harm than good...like would YOU refer a photographer that is trying to take your butt to court? I wouldn't. I'd be inclined to refer the idiots that got me a cd cover for a sitting fee. :) Anyway, I appreciate you not reiterating the stupidity factor here. Again, lesson learned, trust no one.
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Samuel Smith |
gospel singers?you'd think god would give you a copyright? in your local paper write a letter to the editor,stating the facts and verbal agreement.my understanding of the agreement.what I thought was the agreement.be very careful of torts and accusations.anger is your worst enemy. you can tease liable,but don't sleep with them. I thought,my understanding?as you state here,my understanding was such. but trust no one?by your anger your not thinkin straight. now I have to deal with the fact,you would'nt trust me? you can afford an opinion without a blatent attack. it's possible they thought you did the shoot and all rights are theirs?
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Mark Feldstein |
Well Julie, you actually can enforce a verbal contract in court and there are numerous ways to do that, especially in small claims courts. There's a lot more to the situation that you described including knowing the standard business practices of photographers before you start your business. That's not stupidity, btw, it's more a common sense issue. In the meantime, by not talking to a lawyer to find out exactly what you CAN do, you're now essentially giving yourself bad legal advice which is kind of how you got into this situation in the first place. So, while you don't realize it, you still have a great deal of recourse against your client. The starting place should be to copyright each and every image you shot of him. While that's pending, next, as Todd suggested, send a cease and desist letter (preferably one from a local intellectual property lawyer). Also make it clear that if the CD goes to press without payment, you'll have your attorney ask the U.S. District Court to impound and seize all copyrighted printed materials for infringement. Chances are he'll pay by that point, although a reminder of the statutory damages for copyright infringement, whether wilful or innocent, are in excess of $100,000 for each violation. Not doing anything, which is your perrogative, of course but accomplishes absolutely nothing no matter how you attempt to rationalize it, not only is a disservice to yourself, but anyone who makes a living in this profession including guys like me. Chances are if the person you're complaining about did this to you, he'll try it again later on unless someone (like you) does something NOW to let him know this kind of nonesense won't be tolerated.
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Mark Feldstein |
BTW Julie, just to make it clear for you: Once you've sent your work in to be registered, you don't need a written contract to sue him for infringement. You make the allegation that he used the work without your consent. At that point, the burden of proof shifts to him to show otherwise. That seems to be a burden that he can't meet and all you've needed to do to get to that point is send a cease and desist letter and file a form complaint for infringement in the local U.S.District Court. ;>) Go talk to a local lawyer who does intellectual property law. That'd be money well spent (and pass the cost on the guy who perpetuated this through HIS stupidity).
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Todd Bennett |
Julie, "like would YOU refer a photographer that is trying to take your butt to court?" I ask you, do you want referrals from a guy that will rip you off? And, if people are on the up and up, do their homework, and build in protection, it doesn't get to a situation like this to begin with. He's a co-worker? You don't want to make him mad? Why not? He's putting the screws to you! Whether or not it is intentional is beside the point. He's taking money out of your pocket! You gotta get a thick skin. There are ways to go about this firmly; but, nicely. Mark's bang on. Doing nothing is accomplishing nothing.
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Julie Wall |
Hi, Guys... Thanks so much for all the responses. Last nite I neglected to mention (not that it changes anything) that my friend was approached by the gentleman in question and I was there to assist and shoot as a secondary. He wanted to help her out, as he knew that she was trying to get some experience and a little exposure. Arrangements were made through her, check for session was made out to her, etc, etc, as she is the contact. Because I am in the "assistant" position, I don't feel that I'm in the position to take the lead here. BUT... I have shown her your responses, and I agree with what you all have posted. She runs into him daily and I suggested that when she sees him this morning to ask him when she/we could meet with him regarding payment for use of the photos. I don't know the guy as well as she does, but she feels like maybe he is simply unaware of the issues at hand and doesn't realize that there is a problem. On our end, we weren't specific in writing, nor was any kind of "images are the property of" disclaimer placed on the cd. This has been pretty much a snafu from the word go. :) When she called me last night and told me what went down, I told her I was going to post here because you guys have never steered me wrong, and this is no exception. On the bright side, prior to all of this I had been working on my forms, business plan, pricing, etc. and am working on getting them online and in print. So it has definitely been a learning experience for me on how NOT to do it. Thanks, guys, again, for all of your input. I'll let you know what happens. Jules
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Mark Feldstein |
So you both photographed this guy and...let me guess: neither one of you kept track of which images you shot so it's impossible to determine who shot which (released the shutter) or "who's on third and what's on second?". That does tend to make the copyright issue a whee bit difficult. Check please. M.
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Kerry L. Walker |
Maybe I am missing something here. Have you talked to the guy and explained to him that you expected to be paid for his use of the images? Most people don't understand session fees vs usage fees, etc. Maybe he thinks all he owes you is what he paid. Before I went to an attorney, I would just sit down and talk to him. Next time, explain everything and get it in writing.
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Julie Wall |
Actually, Mark, we DID do something right. We do know whose images are whose. :) Kerry, we're trying to get up with him, (or rather she is) but he isn't in today. She and I are meeting after work to try to reach him together so that we can try and get this rectified. Like I said previously, it was a spur of the moment thing, did it as a favor for a friend, and it wasn't put it in writing. She feels pretty bad already about how this turned out. Perhaps I've made entirely too much of the situation.
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Jerry Frazier |
Julie, For shoots like this, you never drop anything off. You go show them, or they come see them, and then you take everything with you. Even putting logos and stuff doesn't stop people. I've actually seen photos in peoples homes with logos across them; and not in a cool subtle way, but right smack accros them in a "I stole this from a photographer" kind of way. Whenever I see it, I always point it out to them - just to be an ass. :)
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Samuel Smith |
jerry,you point out a flaw in a persons ethics,which I think all should do!don't give yourself credit for being the offspring of a mule?
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