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Photography Question 
Melissa  L. Zavadil
BetterPhoto Member

member since: 2/26/2005
 

HELP :o) Commercial Shoot & Rights To Photos


I need some help really quick. I did a commercial shoot and I have never had this happen before.

I did a commercial shoot for this client and gave him a really screaming deal--thinking I could sell some as stock. Well, after the shoot the guy states the images need to be exclusively his. Ok, so I know that I am not obligated legally for this because there was no signed agreement before the photos were to be taken. So, being nice I agreed to give him exclusive rights to five of the photos that he is planning on using after the shoot--this was a verbal contract. He stated that he would send me a notice to sign in an email.

I recieved the email today and it says ALL photos that were taken are to be exclusively his even the ones that I took AFTER the event not even on his time card. (Legally I know that I have rights to those images.)

What would you do? Should I just chalk this up to a bad bad business deal and call it over or should I refuse and keep rights for some of the images? Also, has anyone here ever had this problem before?

Thanks
Melissa

12/19/2005 8:30:17 AM

 
kerby lee pfrangle
BetterPhoto Member
Contact kerby
kerby's Gallery
pfrangle.com

member since: 4/19/2005
  Melissa

I think the man is taking advantage of you.

I write a very nice letter back and say he did not understand what you said and state that you told him he could have five images and which five would he be interested in.

Kerby

12/19/2005 8:43:23 AM

 
Mark Feldstein
BetterPhoto Member

member since: 3/17/2005
  Well Melissa, I hate to say this, but this is the situation people get into doing this kind of work without a complete written contract for the services, a copyright paragraph as to who owns the images, AND what the agreement is for usage.

There's a recent thread here called "How Can I enforce my copyright".
I included a fair amount of information for Susan and I recommend you read it, including the references to Title 17 U.S. Code Sections 501, etc. of the copyright laws regarding infringement.

There are a lot of pieces missing to this particular puzzle, but for openers, I wouldn't let this guy bully you into surrendering your copyright.

BTW, and please don't take offense at this because it's not intended as criticism, but "screaming deals" based on largely unenforceable verbal agreements, as you put it, are usually entered into by people who really want a chance to do this kind of work. SWo, initially, as a word to the wise, to avoid these kinds of situations, have a written contract AND know the law as it applies to your copyright and how to protect your rights. Take a close look at http://www.copyright.gov and find the link to the law, and also the link to visual arts and the various circulars you can print out. THEN

Send the guy a letter, polite or not, that memorializes the terms of your verbal agreement and asks him to sign it, return the original to you and keep a copy for his records. Don't mention your usage of the photos for stock. If his products or whatever you photographed is copyrighted or trade marked, you can't do that without HIS written consent. You might suggest a co-extensive usage agreement wherein he can use the five photos for his purposes and you can use them for self promotion but you retain the copyright.

At that point, rather than saying he didn't have a clear understanding of your agreement, you should instead say that he may not have a clear understanding of the copyright laws as they apply to visual arts and your agreement, recommend that he read the provisions of the law at that web site and pay particular attention to actions for infringement and remedies, including willful infringement carries civil penalties up to $75,000 per incident. Then tell him that you're certain he will respect your copyrights and that you're equally certain that you can come to an amicable agreement as to the usage for the 5 photos and any additional photos.

Two additional points: If he claims that your work was done as "work for hire", which in some circumstances would mean he holds the copyright, then he needs to produce a written contract signed by you that clearly states it's work for hire. Verbal agreements for that don't wash.

Worst case scenario is to tell him to go hire another photographer to reshoot and negotiate usage before the fact rather than to try to blindside you afterwards. If you cave in, then you may be developing a reputation as someone who can be brow beaten into surrending copyrights that others may well know are yours to sell and negotiate usage for fees.

Send him your letter via FAX AND by certified mail, return receipt requested. That'll let him know you aren't kidding around. And, last but not least, REGISTER your images with the copyright office. Dowload the forms at the site mentioned above, pay the 30 bucks and that'll cover you in case you decide or need to file an infringement action (using a lawyer who specializes in intellectual property.)

Good luck.
Mark

Meanwhile, you should get the publications available from the govt. site and also look at the business practices handbook(s) of the American Society of Media Photographers, (ASMP) that I think you can find at Barnes and Noble doing a search under Business Practices for Photographers or the organization name. Also see http://www.asmp.org.

12/19/2005 12:22:08 PM

 
Melissa  L. Zavadil
BetterPhoto Member

member since: 2/26/2005
  Mark thank you so much! You are absolutely right! I don't know why I didn't think about this type of issue before hand and have a contract to cover it LOL (my husband is an attorney) LOL

I am going to have him look over what you said I would have contacted him immediately with this issue but he has been in a trial all week and I haven't seen him.

Do you know of a contract that I could get my hands on right off the bat that would clarify this so when I have another commercial shoot this issue does not come up again. By the way there were no products in the photos.

There were just very well known professional cheerleaders that allowed him to photograph them during one of their sessions for his website. So, I really DID want to do this shoot--very high profile. I probably would have done it for free just for stock purposes :) LOL But, in any event I want the images also :) They are quite good! :)

What do photographers normally do in this type of situation? Do photographers just give them a CD and obtain rights to all the images? And the photographer can use them anyway they desire? Or is there more to this? Thanks A LOT
Melissa

12/19/2005 12:40:14 PM

 
Mark Feldstein
BetterPhoto Member

member since: 3/17/2005
  Hi Melissa: Ummmm, two books come to mind that you can probably get Fedex'd overnight in a day or two from either the publisher or Barnes and Noble (http://www.bn.com)

The first is a compilation of forms and business business practices from ASMP. It's a bit aged, but check our website ASMP.org under publications and see if these things are still available. It's been awhile since I looked. One is entitled "Professional Business Practices in Photography" by ASMP and mine is the fourth edition. They also used to publish a book entitled "Forms" that's really great.

A pamphlet ASMP used to publish also is called "Photography: Cost and Value" and is a client educational piece that really lays out what they're getting for their money. See if that one is still around at the website.

Now, Allworth Press published one called "Business and Legal Forms for Photographers" by Tad Crawford with ready to use forms, negotiation checklists AND all the forms are on an included CD-Rom. I've got the third edition of that one and use it alot. Barnes and Noble might even have a newer one available. OR check http://www.allworth.com and see if they can get it to you overnight.

The statutes I mentioned in 17 U.S.C., Section 501 et seq. as your husband will know, are available from West USCA or online at Westlaw. For forms, if he has Benders Forms of Pleading and Practice, he might find a useful form or two for you under contracts and copyright. Usually forms are only 60-80 per-cent of what's needed in the deal, so they have to be modified for specific purposes.

Rights of usage is contractual. As your husband can further explain, you can enter into a contract for any purpose so long as you've got capacity to do so and the subject matter is legal, and there's sufficient consideration. So, you can negotiate any type of usage agreement you want. There are like a gazillion (not a legal term) scenarios for this but it's ultimately up to you and your client.

I don't deal in CD work unless it's for news publication and to that extent, my agreements for news are done on a work for hire basis so they own all the rights although I have a clause allowing me to use the work for self-promotion. In your situation, you really can't use them for much unless the cheerleaders collectively signed model releases allowing you to print, publish or reproduce in any manner or form. So, unless they're released, stock is out. Portfolio use is fine.

If you can't wait to get your hands on one or more of those publications I mentioned, then the memorialization letter I talked about earlier will essentially accomplish the same thing so long as it sets forth the original terms of your verbal agreement including cost of shoot, usage, byline if any, copyright ownership belongs to you, and additional usage is a separate issue to be negotiated prior to such additional usage.

For example, if he wants the pix published in a sports magazine for commercial advertising, then he needs to give you a layout of the ad and tell you how large the photo will run, e.g., full, 1/2 or 1/4 or less of a page and what the press run of the publication will be, as determined by SRDS (Standard Rate and Data Service). THEN you can tell him how much your usage fees will be. For suggestions on that, look for the industry survey of fees (examples of fees) posted at http://www.apa.com (Advertising Photographers of America.)

Failing all the above, have your husband get out a chunk of letterhead and send the guy what I call an uglygram. He'll know what I mean.

BTW, the only time I've actually transfered my own copyright to a client is when the work was for the government and was going to go into the public domain. Still, I retained my right to use and reproduce the photographs for self-promotional purposes.

Now remember Melissa: Never ever ever do this again. ;>)

Take it light and be well.
Mark

12/19/2005 4:20:44 PM

 
Melissa  L. Zavadil
BetterPhoto Member

member since: 2/26/2005
  Thanks Mark! I really appreciate the information! I can't believe that I got myself into this concidering.... LOL

I am looking into that book and CD I think that will help. THANKS I know my husband has access to westlaw among the others. So, when he is done with this trial I will hound him on that one! LOL --he seems to disapear from my life when in trial LOL LOL

All the cheerleaders signed model releases believe it or not!! I made sure it was all legal and I used my stock release form through corbis. So, it is a good contract and the models were paid so that seals the deal. :) I want to use the images as stock ultimately. :)

Thats interesting about the copyright and not giving that away.

Thanks for all the info!!
Melissa

12/19/2005 6:10:52 PM

 
John G. Clifford Jr
BetterPhoto Member

member since: 8/18/2005
  Seems to me that you are in the driver's seat, not him.

You have the signed model releases, not him. You have possession of the images, not him. You have the legal copyrights, not him.

The worst he can do to you is to not pay. The worst you can do to him is to not sell him the images. You are out your time and effort, but you have a bunch of (supposedly) marketable photos. He has to re-coordinate everything and may not be able to do so... or it may cost him a lot.

I'd figure out what the best situation FOR YOU is, and then I'd do it. Basically, the demand for all copyrights is a bluff and means nothing. You are free to tell him to (politely) stick it where the sun doesn't shine.

Make him pay. I wouldn't sell ANY copyrights. What I would consider selling are use rights (he gets either a per-use, or an unlimited use license), while you retain the copyrights. Use the fact that he demanded all copyrights as your reason for changing your mind on the five images.

I repeat: YOU are in the driver's seat here. So, drive.

12/19/2005 11:39:50 PM

 
Mark Feldstein
BetterPhoto Member

member since: 3/17/2005
  You're quite welcome Melissa. Any time.

So, there's a lawyer vying for admission to heaven based on the contingency that there are NO federal judges there. St. Peter promises the lawyer that there are absolutely NO federal judges in heaven and offers to have him come in to look around. The lawyer agrees.

As they're walking around, they hear a bell ringing behind them. The lawyer turns around and sees a guy in a flowing white beard, long black robes, riding a bike, ringing the bell repeatedly and gesturing for them to get out of the way, telling everyone what to do and how to do it. Terrified, the lawyer nearly jumps into St. Pete's arms and in tearful panic yells "I thought you said there were NO federal judges here." St. Peter smiles and just tells him "Look, that's God. Every once in awhile, usually on Law and Motion Days, He likes to dress up and PRETEND he's a federal judge."

Yeah, I recall that the best way to lose weight is to have a trial.

I think you're on the right track now.
Take care kiddo. Hollar if you need anything else and HAVE SAFE AND SANE HOLIDAYS.
Hugs :>)))
Mark

12/20/2005 10:30:51 AM

 
Melissa  L. Zavadil
BetterPhoto Member

member since: 2/26/2005
  LOL LOL Thats funny! I'll share that with my husband! LOL

-- he HAS LOST WEIGHT so much so I can't SEE him! LOL LOL LOL
.........--now if he will only ever come home :)

Thanks!

12/20/2005 4:54:43 PM

 
Mark Feldstein
BetterPhoto Member

member since: 3/17/2005
  My pleasure Melissa. Any time. ;>)
M.

12/20/2005 6:21:15 PM

 
Mark Feldstein
BetterPhoto Member

member since: 3/17/2005
  Hey Melissa !!! I'm sure your husband will appreciate this one.

St. Peter talking to a lawyer while standing outside the pearly gates: "Congratulations, you're the oldest lawyer we've ever had ask for entry into heaven." The lawyer looking somewhat astonished says, "What are you talking about? When I died, I was a young guy, only 41 years old."

St. Peter flips through his clip board while shaking his head. "No, it's not a mistake. It's all right here. Based on your time slips and the number of hours you've billed to your clients you're one hundred and thirty seven years old."

Have great holidays !!
Mark

12/21/2005 3:48:34 PM

 
Melissa  L. Zavadil
BetterPhoto Member

member since: 2/26/2005
  LOL LOL LOL !!! Yea he is about that old now! LOL
Your funny!!
Melissa

12/21/2005 3:53:42 PM

 
Allen Lani

member since: 11/1/2008
  Well, heck where was I when this was posted. I believe I may be the second Melissa with the same mistake of trusting (ok, being stupid!)

Mark you have answered so many questions I had, and to think, after scouring through google searches to find this advice and there it is on BP forum by you.

First- I photographed prepared dishes for a restaurant for an ad. (I worked for a local magazine and was paid a small sum to take one photo for the magazine ad) The restaurant liked my images so much they wanted to use them for their menus and website. I let him select the photos from a prof disc I gave to him. He said,he would take care of me big time? Then a little while later he wanted e to reshoot a dish with an alternative sauce for food packaging with their new deal with Costco. Said restaurant owner turned down my proposal to use my images at a cost (very min. compared to going rate) Said he was going in a different direction and didnt require my images for a cost. A few months later, I now see that Costco sells his food packaged with my image on the box... without any contract/permission from me, the photographer. To top it off, the restaurant owner actually went behind my back after refusing my contract proposal and used the proofs I stupidly gave him to view and make choices!
The owner has since contacted me to photograph additional dishes. I put another contract together stating that photos remain ownership of photographer. He turned my contract down again and said he wanted the contract to state that he owned all rights of my images. I said that he could buyout the rights of exclusive ownership for $1,000. He said no, too much, he will find another photographer for less.

I want to know what steps I can take to get paid for what is rightfully mine and stolen from me without my permission. He did not pay one penny for any of my work and is using all the images that I took EHe uses them for everything- huge ads in magazines, flyers, menus, posters, website and now ....packaging.
Do I get an attorney, contact Costco??

Any advice. (besides, did I learn my lesson-yes, and I believe I may be bitter from being burned)

Lani Allen
www.laniallenphotography.com
(You will see the image I am discussing under Commercial-Food -the crab wontons with the orchid)

12/15/2008 8:18:10 PM

 
Allen Lani

member since: 11/1/2008
 
 
 
Well, heck where was I when this was posted. I believe I may be the second Melissa with the same mistake of trusting (ok, being stupid!)

Mark you have answered so many questions I had, and to think, after scouring through google searches to find this advice and there it is on BP forum by you.

First- I photographed prepared dishes for a restaurant for an ad. (I worked for a local magazine and was paid a small sum to take one photo for the magazine ad) The restaurant liked my images so much they wanted to use them for their menus and website. I let him select the photos from a prof disc I gave to him. He said,he would take care of me big time? Then a little while later he wanted e to reshoot a dish with an alternative sauce for food packaging with their new deal with Costco. Said restaurant owner turned down my proposal to use my images at a cost (very min. compared to going rate) Said he was going in a different direction and didnt require my images for a cost. A few months later, I now see that Costco sells his food packaged with my image on the box... without any contract/permission from me, the photographer. To top it off, the restaurant owner actually went behind my back after refusing my contract proposal and used the proofs I stupidly gave him to view and make choices!
The owner has since contacted me to photograph additional dishes. I put another contract together stating that photos remain ownership of photographer. He turned my contract down again and said he wanted the contract to state that he owned all rights of my images. I said that he could buyout the rights of exclusive ownership for $1,000. He said no, too much, he will find another photographer for less.

I want to know what steps I can take to get paid for what is rightfully mine and stolen from me without my permission. He did not pay one penny for any of my work and is using all the images that I took EHe uses them for everything- huge ads in magazines, flyers, menus, posters, website and now ....packaging.
Do I get an attorney, contact Costco??

Any advice. (besides, did I learn my lesson-yes, and I believe I may be bitter from being burned)

Lani Allen
www.laniallenphotography.com
(You will see the image I am discussing under Commercial-Food -the crab wontons with the orchid)

12/15/2008 8:19:07 PM

 
Allen Lani

member since: 11/1/2008
 
 
 
Well, heck where was I when this was posted. I believe I may be the second Melissa with the same mistake of trusting (ok, being stupid!)

Mark you have answered so many questions I had, and to think, after scouring through google searches to find this advice and there it is on BP forum by you.

First- I photographed prepared dishes for a restaurant for an ad. (I worked for a local magazine and was paid a small sum to take one photo for the magazine ad) The restaurant liked my images so much they wanted to use them for their menus and website. I let him select the photos from a prof disc I gave to him. He said,he would take care of me big time? Then a little while later he wanted e to reshoot a dish with an alternative sauce for food packaging with their new deal with Costco. Said restaurant owner turned down my proposal to use my images at a cost (very min. compared to going rate) Said he was going in a different direction and didnt require my images for a cost. A few months later, I now see that Costco sells his food packaged with my image on the box... without any contract/permission from me, the photographer. To top it off, the restaurant owner actually went behind my back after refusing my contract proposal and used the proofs I stupidly gave him to view and make choices!
The owner has since contacted me to photograph additional dishes. I put another contract together stating that photos remain ownership of photographer. He turned my contract down again and said he wanted the contract to state that he owned all rights of my images. I said that he could buyout the rights of exclusive ownership for $1,000. He said no, too much, he will find another photographer for less.

I want to know what steps I can take to get paid for what is rightfully mine and stolen from me without my permission. He did not pay one penny for any of my work and is using all the images that I took EHe uses them for everything- huge ads in magazines, flyers, menus, posters, website and now ....packaging.
Do I get an attorney, contact Costco??

Any advice. (besides, did I learn my lesson-yes, and I believe I may be bitter from being burned)

Lani Allen
www.laniallenphotography.com
(You will see the image I am discussing under Commercial-Food -the crab wontons with the orchid)

12/15/2008 8:19:30 PM

 
Allen Lani

member since: 11/1/2008
  Well, heck where was I when this was posted. I believe I may be the second Melissa with the same mistake of trusting (ok, being stupid!)

Mark you have answered so many questions I had, and to think, after scouring through google searches to find this advice and there it is on BP forum by you.

First- I photographed prepared dishes for a restaurant for an ad. (I worked for a local magazine and was paid a small sum to take one photo for the magazine ad) The restaurant liked my images so much they wanted to use them for their menus and website. I let him select the photos from a prof disc I gave to him. He said,he would take care of me big time? Then a little while later he wanted e to reshoot a dish with an alternative sauce for food packaging with their new deal with Costco. Said restaurant owner turned down my proposal to use my images at a cost (very min. compared to going rate) Said he was going in a different direction and didnt require my images for a cost. A few months later, I now see that Costco sells his food packaged with my image on the box... without any contract/permission from me, the photographer. To top it off, the restaurant owner actually went behind my back after refusing my contract proposal and used the proofs I stupidly gave him to view and make choices!
The owner has since contacted me to photograph additional dishes. I put another contract together stating that photos remain ownership of photographer. He turned my contract down again and said he wanted the contract to state that he owned all rights of my images. I said that he could buyout the rights of exclusive ownership for $1,000. He said no, too much, he will find another photographer for less.

I want to know what steps I can take to get paid for what is rightfully mine and stolen from me without my permission. He did not pay one penny for any of my work and is using all the images that I took EHe uses them for everything- huge ads in magazines, flyers, menus, posters, website and now ....packaging.
Do I get an attorney, contact Costco??

Any advice. (besides, did I learn my lesson-yes, and I believe I may be bitter from being burned)

Lani Allen
www.laniallenphotography.com
(You will see the image I am discussing under Commercial-Food -the crab wontons with the orchid)

12/15/2008 8:19:36 PM

 
Mark Feldstein
BetterPhoto Member

member since: 3/17/2005
  Hey Allen !! Live and learn, I guess. You need to find a lawyer who specializes in intellectual property law. Explain the facts to them, clearly and concisely. Then have them find out how much that company is worth, make sure your work is registered (timely) with the copyright office using form VA at www.copyright.gov, send them a cease and desist letter and claim for damages and start figuring out what it may be worth for you to settle before trial. At this point, I don't recommend you do this on your own.
Good luck.
Mark

12/15/2008 8:57:28 PM

 

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