Usage & Copyright?

[Rachel Stephens]

I was recently contacted by a local jewelry designer wanting shots for a postcard she needed printed and for use for future promotional purposes in magazines, catalogs etc. She is starting out, like I am, and I took a look at her work and felt her company had the potential to do very well and that it would be good exposure for me to use on my site. I agreed to a ridiculously low fee of $200 to shoot the project, she had her own model, I gave her a DVD of all the images in high resolution, worked my favorite from the shoot which she wanted to use so she got free artwork for her postcard, and agreed that she could use the images wherever she wanted. In exchange, I would use the image on my website to promote my business. I even photoshopped in her logo and made it look like a magazine tear. It looks beautiful. I showed it to her and she was elated. I even delivered everything to her within 24 hours with no rush fee. Today I get a call from someone calling on behalf of the model threatening to sue me for using the image on my site. What? I called the designer and she now wants my attorney's name and number.
We had a verbal agreement. No contract. She won't give me a copy of the model release she has with the model. What are my rights here?

It was my understanding that as photographers, every image we create, from the moment we create it, we own. Unless we SELL the images for profit, the copyright ownership allows us to use the images at our discretion for self promotion purposes on our websites and in advertising in newspapers or on sites like Craigslist.

My questions are, what are my rights with the images I create?

Does she have a case against me?

As working photographers, what would you have charged her and what did I do wrong here?

I should have had a written contract, where can I download one that will hold in court if ever this happens again?

And when writing a contract, how do you determine usage fees and what if the client wants to buy the copyright from you so they are the only ones who can use the images?

A lot of questions, I know, but I am self taught and I have no mentor.

Heartfelt gratitude and thanks to all who respond.

 

[rogue_designer]

I feel your pain - but am not a lawyer and wouldn't even know where to begin. You should try to find a local attorney to talk through the case.

My general feeling is that without a model release with you, your ability to use the image on your commercial website will limited (a fine art site would be a different, but just as thorny, issue).

If you are in the US, you do hold copyright to the images, but without rights spelled out for usage on their part, and a release on yours, it will be hard to enforce any sort of restriction and usage for yourself.

There is a book available in most bookstores titled something along the lines of "Legal forms for photographers" this will have sample contracts you can adapt to various purposes, as well as model releases.

I also believe the ASMP's Professional Practices book has some sample forms hiding in the back. Even if it doesn't it's a good book to leaf through.

There is also a book out called Starting Your Career as a Freelance Photographer, that looked to me like it may address some of your other concerns and questions.

Anyway, Good luck.

I hope it is all resolved peacefully. Perhaps you can negotiate for usage rights once the original complaint is dealt with?

 

[Rachel Stephens]

I feel your pain - but am not a lawyer and wouldn't even know where to begin. You should try to find a local attorney to talk through the case.

My general feeling is that without a model release with you, your ability to use the image on your commercial website will limited (a fine art site would be a different, but just as thorny, issue).

What if I cropped the image so that it didn't show the model's face? Just from the lips down?

 

[colyn]

If this situation goes into court the designer will be required to present the release. If it states a set amount of compensation paid by the designer and she did not purchase the copyright from you the court will most likely side with you.

Once the model agrees to the terms of the release and signs it she cannot recieve further compensation.

What I would do is contact the designer and let her know you will ask the court to have her present the release for inspection by the judge.

Compensation from you to the model applys if you sell rights to this photo to other persons...otherwise it is a legally obtained photo and can be used by you.

HOWEVER......... The law may be different where you are compared to where I live. I had a situation along these lines several years ago in which the court sided with me in part because Texas recognizes verbal contracts as well as written.

 

[John Camp]

YOU should always get the model release. Always.

As noted above, you can find a number of books on law and artists' rights on Amazon. You should read one carefully. You should also think about the possibility of setting up a limited liability company or a corporation as your business front. It's not terribly expensive to do, and can be pretty useful.

The model could probably force you to take the picture off the website. You should do it anyway, if you don't have a release (you're making a commercial use of her image, and selling it is her business.) Besides, if you're just starting your career, the first photo isn't going to be your best ever. It might be nice to be able to put it up, but it's not critical.

What the designer told you about the model really doesn't count for much, if the model didn't sign a release. What it sounds like is a beginner jewelry designer, a beginner pro photographer, and a beginner model, and nobody knew quite what to do. You should point out to everybody (if you talk to them) that the amount in question is $200, and you can't even talk to a lawyer for less than that, so there probably won't be any lawsuits, and that you should really get together to settle it. (If they actually went to talk to a lawyer about a suit, their lawyer would point out that you're a beginner photographer with no assets to get -- so the lawyer would have to be paid up front before he'd even file a suit, because even if they won, there'd be no payout. So their clients (the jeweler, the model) would be paying a big fee and their potential winnings would be nothing. And they'd probably lose.

So I wouldn't get in too big a sweat.

The designer, by the way, doesn't even have the right to know who your lawyer is, or even if you have one, much less the right to his/her phone number, until a suit is filed and you are served and you hire a lawyer. In fact, you don't even have to have a lawyer until then. When confronted with similar stupid threats in a somewhat analogous business, my answer is, "Go talk to a lawyer, and listen carefully to what he says." They never sue.

You might tell the designer, "By the way, don't use those photos. If we didn't have a legal contract, then you don't have the right to use my photos; I'll give you the $200 back. And I WILL sue." That should chill her out -- after all, she wants the photos and got a terrific deal on them, right?

When dealing with people in artistic fields, or in academics, their word is as good as their signature at the bottom of a contract, and not one inch better. Somebody once said that academic politics were so vicious precisely because the stakes were so small. That carries over to the art world, and legal relationships. People throw snits to make the point that they are in a position to throw snits.

Oh -- and YOU should ALWAYS get the model release.

JC

 

[Rachel Stephens]

Thank you all so much!

John, you are right. Stellar advice. Things have taken a bit of a turn. I think you are right with a bunch of beginners not knowing exactly what we are doing but now, even though I have removed the image from my site, the designer wants complete exclusive copyright and unlimited usage rights to all of the images I shot and the "model" gets a copy of all of the images for to personally use for herself and to give to her boyfriend. Now, I may be an idiot for not getting things in writing and not realizing that I needed an agreement from the model as well as the client but I know that the law has got to protect me from being THIS grossly taken advantage of.

 

[JohnM]

I think I would take the pains of learning your rights here - there seems to be an awful lot of interest in the rights from the designer and the model and that would immediately raise my suspicion level. I would just hate to see you give away the store without knowing why - perhaps you should consider getting representation.

 

[rogue_designer]

...
the designer wants complete exclusive copyright and unlimited usage rights to all of the images I shot and the "model" gets a copy of all of the images for to personally use for herself and to give to her boyfriend...

This is the point at which I would mention that you had a verbal agreement that does not include the exclusive transfer of all copyrights, and since you own the copyright to the photographs, as creator, any transfer would require a signed contract and agreement between you and the transferee. You would be happy to write one up and provide an appropriate estimate for the transfer of those rights (usually very very expensive indeed).

Question - is the designer the jewlery designer with whom you had the verbal agreement? or a 3rd party (web/graphic) designer?

Question - did you sign anything? If not - they likewise have no grounds to demand a full rights transfer - that would have to be in writing - no if's and's or buts.

However - since it is photography of copyrighted work - you may not be able to use those photos either - even owning your own copyright.

Man...

I would make a bad IP lawyer. Apologies. I just confused myself. I agree with John. Now might be a good time to find an attorney. Consider their fees a tuition of sorts. The school of hard knocks.

 

[Rachel Stephens]

Rogue, this is so confusing. I have been posting everywhere and researching online and it seems there is more gray area than answers. At this point, I think it might be worth it for me to hire an attorney to just learn the ins and outs here.

Answer: The jewelry designer is my client who I had the verbal agreement with.

Answer: I did not sign a damn thing.

I can live without being able to use the images but if I can't, no one else can either. If I have to max my credit cards to do this, on principle, it may be worth it as she is totally trying to scam me...and I fell for it hook, line and sinker. Unfortunately for her, I am not the type to roll over. I have worked too damn hard to let myself get screwed over like this.

Thanks guys.

 

[ClaremontPhoto]

Take the photos off your site, and do nothing more and the whole thing will go away.

Don't max out a credit card to make a rich lawyer even richer, and don't do anything 'on principle' - life's too short to let petty disputes like this dominate our thinking and lives (and photography).

Go out for a nice dinner with a good friend and discipline yourself not to talk about the jeweller and the model.

It's time to move on.

 

[Rachel Stephens]

Patrick, I know I know. Well, on the first count, yes it did cross my mind but it sounded so informal and quick that I did it against my better judgement and with hope that her line will take off and I can use that to my benefit to promote my photo business. The second count, I had no clue. Now I know better. Thanks.

I am waiting on an attorney to send me a quote for writing a letter for me to the designer stating that no one can use the images in any media unless a licensing agreement is made and usage rights are paid. I already gave her the images so if I refund the money, she can still use them and intends to use them on the web, in print and to use as advertisement in fashion magazines in the future. This is what she said to me when she was swooning over the images I was showing her the day she came to pick up the disk. Man, and to think I was doing a good thing here.

I hate that is is going this far but the next time I get a request from someone who doesn't have much money, I will take that as a sign and run away.

The model is not a pro, not even close. She is a friend of the designer and having a Primadonna moment apparently. The hilarious part of this is that she is freaking out that I used a photo of her on my website but signed a release to the designer and agreed to shoot for a postcard which is intended for worldwide distribution. Makes no sense to me at all.

 

[Finder]

Well, if you cannot show images you've taken in your portfolio, whether on the web or on a book, neither can the model use the images in her book unless she has an agreement from you. The use of images in a portfolio to show prospective clients work you have done is kind of a gray area - are they samples or advertising? What is sauce for the goose is good for the gander.

As far as the verbal agreement, you can always make life ugly for your client and the designer. All agreements should be in writing. How can they prove you actually gave them rights to your work and what rights did you gave them? Certainly you could hold up this advertising campaign and how does that help them?

The other problem if you live in a small town, word gets around. Not only have you shown you are not professional - why no contracts? Why so cheap? Yes, there are two stories to every story, but which side has the greater voice. Not that you can overcome this, but it is something that could make an impact. Naturally, I would avoid the client, designer, and model from now on.

 

[Jon Perry]

Try and get everybody involved to sit down over a coffee and have a sensible chat. I have found that situations like this can be 'eased' if you point out to the other parties the costs they have saved by your 'act of generosity'. Showing them what it could have cost (priced up for pro rates) can bring people back down to earth pretty quick.


The trick is not to lose any more money (like on legal fees) and to try and part company with a friendly (written) agreement and signed model release.

Compromise is an ugly word, but it can save you a fortune when you have messed up (no written agreement or signed model release).

Best of luck.

Jon

 

[Andrew Sowerby]

Take the photos off your site, and do nothing more and the whole thing will go away.

Don't max out a credit card to make a rich lawyer even richer, and don't do anything 'on principle' - life's too short to let petty disputes like this dominate our thinking and lives (and photography).

Go out for a nice dinner with a good friend and discipline yourself not to talk about the jeweller and the model.

It's time to move on.

Agreed! Chalk it up to experience. Buy a couple of good books on the issue and, if you're serious about becoming a professional photographer, consider incorporating a company. Find a lawyer that knows about the professional photography business and develop a relationship with him or her.

 

[Flyfisher Tom]

I had a situation along these lines several years ago in which the court sided with me in part because Texas recognizes verbal contracts as well as written.

First, consult an attorney. While some forum members are attorneys, they might not be in intellectual property specialties.

Second, as Colyn indicated, in most jurisdictions in the US, verbal contracts can be enforceable under some circumstances if capable of being performed within 1 year, concept known as Statute of Frauds. But like so many things in law, the devil is in the details, and much of it will depend on what you and the designer's verbal agreement specifically encompassed.

But consult an attorney in your jurisdiction. Generally, the requirement of a model release applies to commercial use of a photo. In the case of promoting your own website, that's an interesting question, is it reportage, is it artistic, or is it commercial, or a combination of all of the above? A recent NY case, held for the photographer in the use of a non-waivered photo in a gallery. Is that commercial? one might think so 🙂

You can try to skirt the identifiable part of the waiver requirement, but do you really want to run that risk if this model is unreasonably litigious? In other words, how much do you really want to use this photo versus the potential headache of unpleasant legal wrangling? The best solution might be to chalk this up to a great learning experience and use model releases next time from the ASMP.

Good luck, I am sorry to hear of your difficulties. But if you really want to have solid legal footing, you need to consult an intellectual property attorney in your specific jurisdiction. Hope it all works out. Let us know what happens.

 

[Rachel Stephens]

In all honesty, I don't want anything to do with the images now and quite frankly, I don't want either of them to have free use of them either. I am going to notify her that until we get a written agreement and a model release signed by her model that allows both of us to use the images for self promotion of our businesses, neither of us can use the images. At that point, if she wants to get nasty, she can go ahead and start proceedings. Do I want that? No. But I can call someone's bluff in defense of my rights and not roll over and allow myself to be taken advantage of. Mind you, she ONLY had $200 to pay me for this so I highly doubt she can afford a lawsuit and if she does get litiguous, what is her case against me? I already took the image down. The agreement we made, written or not, was broken. I really think she would have a difficult time convincing a judge that she is entitled to free and unlimited usage rights to the images and I am entitled to nothing. The only thing in writing we have is the invoice and it says the $200 fee is for my REDUCED SITTING FEE. Other than a disclaimer that I own copyright to all of the images I create, that is it. So, thanks to all of you and the links you gave me, I am feeling pretty confident about it and slightly discouraged but who ever said it was going to be easy? I have been shooting since 2004 and I am making a living as a photographer. Not a great one but it's a start. If I can teach myself photography, photoshop, html, flash and raw imaging, I can learn the nuts and bolts of the business of photography. Memberships to the APA and ASMP and purchasing some good recommended books is next on the list. I will look into incorporating as well. Man, it sure ain't easy...but nothing worth it is. 🙂

Many thanks,

Rachel

 

[Flyfisher Tom]

Rachel,

The silver lining is that you've gained a lot from this experience, better to have these difficulties on this relatively smaller project, than on a big project later down the line in your career. Keep at it, great rewards only come to those who take great risks 🙂

And, by the way, welcome to RFF 🙂

cheers.

 

[Rachel Stephens]

Silver lining indeed. I am posting all the links I have acquired from these forums for my network of friends on various sites. Thousands may benefit from this. Thank you.

My personal method of dealing with my grievences are in my art, I finished this just now. It is titled "Disappointment and Defiance" (and yes, I have a model release from the model lol)

<img src="http://rachelstephensphotography.com/online/ariel-x-041v2.jpg">

 

[Rachel Stephens]

UPDATE:

The designer called me earlier and get this, she said she spoke to her attorney and said that they need to get in writing MY agreement of usage intention of the images I shot. Yes, she thinks she owns the images. In fact, she outright ignored me when I told her yesterday that since she is renigging on her verbal agreement, we have no agreement and until we agree on one in writing, neither of us can use the images and she went ahead and put the one I worked into print production! UNBELIEVABLE. So I just had to hire an attorney. Happy birthday to me. 🙁 The best gift I could get from this is to not get royally screwed and walk away without spending a ton on lawyers. I am already paying for living expenses with credit cards, have a son to raise and a baby on the way. Thanks for taking the time to read and post here. Venting to others who understand is sometimes all you need to get through it and without these forums, the last few days would have been a lot harder.

 

[Crasis]

UPDATE:

*Stuff here*

Where the hell do these ****ers get off ruining capitalism for the rest of us? Hasn't this lady ever heard of fair trade? Well she'll get what's coming.