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Old 06-19-2012, 08:57 PM   #1
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Angry Question for photographers-Pro's advise please

So the short story is I got married back in October. We hired a Photography Major in her 2nd/3rd year. We asked my wife's school for a recommendation for some one who could come take a few pictures for $500 and also use it as a school project or for building their portfolio. My dad was going to take photos of the wedding, but since he was part of the wedding party we hired out for this woman to take pictures during the 5min ceremony and a few quick ones of the wedding party and go. Be there an hour at most. Thats the pre story.

Now it's June and still have nothing. We are fighting through peaceful emails back and forth. The pictures suck and I have had an actual professional person see them and my entire family. My father during the wedding party shots was across the street and took better pictures. I know $500 isn't a lot. But, it's a student and it was meant for a "you help me, I help you".

There was no written contract from the begining of this, just a oral agreement. That was apparently vague, or is getting fuzzy by now at the least. YES, I know shame on me. However, she doesn't have a written thing to throw in my face either. I am the one with the short stick at this moment. Don't mock me for my stupidity 8-9months later. Lesson learned, moving on.

Here are my questions-
1) Don't some pro's give the customer a disk of pics to use say years later in case my house burns down and I can't find the pro? Think small business, not company.

2)Frankly at this point really don't even want the pics. Just typing this makes me think I need to go take my blood pressure meds. She's offered to give me 20pics at low res and make me go away. I've offered 50 pics in RAW high res (she didn't even shoot in that high of res) and she should be embarassed by her work.

3)Is it fair to ask for $400 back and she can go the f--- away. I think $100 for wasting my time is more than enough.

Pics are retard. Streets in back ground, most are blurry, telephone lines coming out of the wives head, and specifically asked not to do a lot of posed shots-pretty much all she did.
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Old 06-19-2012, 09:03 PM   #2
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1. yes, I have all mine in digital format (20 DVDs worth IIRC -- all full res).
2. punch her face.
3. falcon punch to abort her unborn.
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Old 06-19-2012, 09:38 PM   #3
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Jeez, that's a tough one.

I've shot pics of jewelry for other jewelers, and they always get full res originals, heck even the original slides back in those days. I kept a copy for posterity. All verbal, no rights to the image held by me, only the request of a credit if they are published anywhere.

I've also paid a pro to shoot images for me, and his policy was essentially the same as what I described above. He shot in a large format analog, and provided both the original film and super dense scans, with no rights retained by him. There's another pro photographer in the state who retains all rights to the image, only gives out low res copies as proofs, and you have to pay for anything you print or request otherwise. A policy I've always thought was bullshit and usury at best.

So, given that you cannot get anything from this AMATEUR photographer, perhaps the threat of small claims court will light a fire under her, and maybe a visit to her school/advisor/mentor/etc for some armtwisting. It might be difficult to prove the case on aesthetics alone as everyone's taste is different, but given that you/wife are highly unsatisfied with both the composition and lack of copies, you might be able to get a judgement against her. Or at least get her to give you a CD copy of everything under threat of a suit.
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Old 06-19-2012, 10:19 PM   #4
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I've been debating the threat of a small claims suit. My only problem is I don't have time to follow through if she wants to go that route. If I give her the threat, I personally have to be willing to go through with it. Small moral thing on my part. To me this whole thing boils down to principle. I payed her for a service, not happy, but I'll take a few pics in full res and go away. She needs to do nothing more than click a mouse a few times and I'll happily go away. Well, won't club her with her camera. What gets me is she has had it drilled into her head by the school, it seems, that all photographers make art that is somehow greater than the sum of all things. She's a student, not Ansel Adams.

On a side note. If I see another photo major take pictures of old train tracks and call it art I'm running them down with my Jeep.
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Old 06-20-2012, 12:14 PM   #5
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1. yes they give you a disk.

I would check into the copyright law for this specific case.

there's a chance you might own some or all of the rights to the photos--in which case you can have a say in where they are (or more relevant) ARE NOT to be used.

like in a portfolio.

that's where small claims court might be worth the time and effort.

hell, even bullshitting her about copyright and ownership might scare her into giving you the photos.
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Old 06-20-2012, 12:18 PM   #6
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a falcon punch would honestly cure all the issues.
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Old 06-20-2012, 12:23 PM   #7
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Quote:
Originally Posted by TorqueZombie View Post
Here are my questions-
1) Don't some pro's give the customer a disk of pics to use say years later in case my house burns down and I can't find the pro? Think small business, not company.

think about this, while you did pay her for her "expertise" you didnt just give her money to show up and then go away and pad her portfolio. you paid her for the rights to the images. since you didnt sign a contract, she cant claim she owns the photos because you paid her for them along with her services. along the lines of" here's $500, take pictures so I can has them."

id honestly take this to court, without a contract she doesnt have a tripod to stand on.

there are some pro-tographers out there that will claim they own the rights and will only give you x amount of pictures back and this and that, and you simply dont hire those ones.

i mean we are talking a shitt student here, why would she even give a ---- if you had the high res images or not? it's not like you are going to go out and sell her stuff and make money off her work..that's the whole point of retaining the rights.

you just wanna see how spiffy you look in a jacket one day.
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Old 06-20-2012, 02:33 PM   #8
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Quote:
Originally Posted by y8s View Post
I would check into the copyright law for this specific case.
That part is easy. TorqueZombie owns precisely fuсk-all insofar as copyright is concerned.


Quote:
Originally Posted by Braineack View Post
id honestly take this to court, without a contract she doesnt have a tripod to stand on.
Unfortunately, the situation here is quote the opposite. Without a contract, TorqueZombie is the one who is screwed. (At least, assuming that the small-claims judge knows anything at all about copyright law.)

Normally this sort of thing would be considered a "Work for Hire" under US copyright law. What that means is that when one person (an artist, photographer, author, etc) creates something copyrightable on the commission of another, it is the client and not the person who actually created the work who is considered to be the legal author for the purposes of copyright.

In the case of an employer - employee relationship, this is automatic. Anything you create in the course of your normal employment is owned by your employer. Software, photographs, written material, donkey ****, etc. You own none of it. (Assuming of course that creating donkey **** is considered to be a normal business activity for you. Since this is a Miata forum, I don't discount anything. )


*HOWEVER*, there is an extra step when the work is commissioned between two independent parties, such as a wedding photographer and a client. Specifically, the copyright law states that this transference of authorship occurs only "if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire." (17 U.S.C. 101) (Full text on page 7 here)


Since no written contract of any kind was executed, the photographs remain the property of the photographer.


Sorry.
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Old 06-20-2012, 02:52 PM   #9
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I was sorta going by that, the work for hire.

and what I meant was, without her saying anything that she gets to retain rights, as "visual art" they shall be the property of the person who paid for them.

it would be hard for her to prove that zombie didn't hire her to take pics for his wedding and he should own the works...it would not be hard for zombie to prove he did.
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Old 06-20-2012, 03:33 PM   #10
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Quote:
Originally Posted by Braineack View Post
and what I meant was, without her saying anything that she gets to retain rights, as "visual art" they shall be the property of the person who paid for them.
Actually, it's the opposite. Re-read what I posted.

Quote:
Originally Posted by Braineack View Post
it would be hard for her to prove that zombie didn't hire her to take pics for his wedding and he should own the works...it would not be hard for zombie to prove he did.
This is true. Sadly, it's also irrelevant.

Read the excerpt I posted above after the word "HOWEVER". Unless zombie can produce a copy of a signed contract between himself and the photog which expressly states that the photographs are to be produced as a work for hire, ownership of the photographs defaults to the photographer, not to the person who hired her.



I'm not saying that he doesn't have any sort of case here at all, merely that he has absolutely no protection under copyright law, as the copyright is clearly held by the photographer in the absence of a signed "work for hire" contract.
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Old 06-20-2012, 03:35 PM   #11
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If I paid someone $500 in cash to take pics of my wedding and I got 20 low res worhtless images I would sue and i would win.

As it follows under:

Quote:
A “work made for hire” is -
Quote:
(1) a work prepared by an employee within the scope of his or her employment; or
not:

Quote:
(2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.
in which you do. Zombie is her employer; this was not comissioned work.
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Old 06-20-2012, 03:45 PM   #12
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Quote:
Originally Posted by Braineack View Post
If I paid someone $500 in cash to take pics of my wedding and I got 20 low res worhtless images I would sue and i would win. civil court makes up their own rules bro.
I agree completely.


Quote:
Originally Posted by Braineack View Post
Zombie can argue it was work for hire, the photgrapher can't rebuttle.
He can argue it, and he'd be wrong. The photographer, can absolutely rebut him simply by spending 15 minutes using Google to find the relevant section of the copyright law.

Moreover, I think it's safe to assume that someone who is a 3rd year photog major has at least heard the phrase "Work for Hire" before, and would most likely seek the counsel of her professors were she to be sued, in which case they would absolutely advise her in the same manner as I have stated here. All she needs to do is walk into the courtroom with a copy of 17 U.S.C. 101 (she could use the link I posted earlier) any any claim that zombie might make concerning copyright protection would not merely be nullified, but would in fact serve to HARM his case.




All I was doing here was responding to Y8s, who said:
Quote:
Originally Posted by Y8s
I would check into the copyright law for this specific case.

there's a chance you might own some or all of the rights to the photos
by pointing out that copyright law is AGAINST zombie in this case, and thus, is not a useful tool should the matter be taken to court.
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Old 06-20-2012, 03:48 PM   #13
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i edited my post a bit.

i mean it's either work as an employee or as comissioned art and is signed off as hire.

would he not be the employer?
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Old 06-20-2012, 03:49 PM   #14
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Zombie is her employer; this was not comissioned work.
Zombie is absolutely not her employer under any definition contained within federal law. The photog is an Independent Contractor.
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Old 06-20-2012, 04:02 PM   #15
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If not the legal route, perhaps you could use threats of bad online publicity to leverage your cause? I think that a properly written review/rant could do a lot of damage to a photographer who likely doesn't yet have much of a reputation.
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Old 06-20-2012, 04:04 PM   #16
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Originally Posted by Joe Perez View Post
Zombie is absolutely not her employer under any definition contained within federal law. The photog is an Independent Contractor.
ill remember that one when i screw up someone's MS.


Even if the photographer retains all the rights to the photos, zombie should at least expect to recieve a copy of every single image he paid for. But it's more or less assumed, otherless otherwise discussed, youre getting non-commerical licensing to the images. So i really dunno why this chick is hold out...

Last edited by Braineack; 06-20-2012 at 04:17 PM.
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Old 06-20-2012, 04:14 PM   #17
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If not the legal route, perhaps you could use threats of bad online publicity to leverage your cause? I think that a properly written review/rant could do a lot of damage to a photographer who likely doesn't yet have much of a reputation.
He can still take the legal route, he just can't use copyright as a tool.

Oral contracts can be a tad tricky, but if neither party disputes that money was paid for services, the photog still has an obligation to deliver the goods which were agreed upon, or which you might have a "reasonable and proper" expectation of receiving from a professional photographer hired to take wedding pictures.



Zombie- since your relationship with this person began on the recommendation of a school, have you tried contacting the school directly and in person? I would imagine that the most productive recourse might simply be to speak with whoever recommended her and ask for their assistance as a mediator. The dean's concern for the reputation of the school is likely greater than the photog's potential fear of a negative review on some random website that nobody will ever read.




Quote:
Originally Posted by Braineack View Post
ill remember that one when i screw up someone's MS.
Independent contractors can still have liability for negligence.



Quote:
Originally Posted by Braineack View Post
Even if the photographer retains all the rights to the photos, zombie should at least expect to recieve a copy of every single image he paid for.
And this is the proper argument to make should the matter reach adjudication.



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Originally Posted by Braineack View Post
But it's more or less assumed, otherless otherwise discussed, youre getting full rights licensing to the images.
It may be assumed, but it's not correct.
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Old 06-20-2012, 04:21 PM   #18
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It may be assumed, but it's not correct.

true, but there was no contract to say otherwise I cant imagine hiring a photographer and not getting a non-commerical license to the photos. I also couldn't imagine paying $25 a photo for 20 low res images. I'd go on bigstockphotos.com, but a few stock images, and photoshop my faces into othe rbodies before I did that.


(i was getting a bit confused over licensing and copyrights earlier today)
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Old 06-20-2012, 05:00 PM   #19
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true, but there was no contract to say otherwise
There was also no contract to say that the photographer couldn't murder the bride with an axe. And there doesn't have to be- the law says that.

In the absence of a contract, copyright defaults to the photog. There is simply no getting around this.


Quote:
(i was getting a bit confused over licensing and copyrights earlier today)
Well, the two are related in that only the copyright holder (or their designee) may grant licenses for use. It's kind of a ludicrous scenario, but I would imagine that the photog could technically sue Zombie for infringement if he reproduced or published his own wedding photos, posted them on a website, etc.

I have a hard time imagining that any court would actually uphold this, and I can find no evidence of such a case actually being heard, but it would be interesting if it happened. I would imagine that the court would at least find that an implied license for noncommercial use is conferred to the client, though this would of course be a matter of judicial opinion.

Isn't copyright law fun?
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Old 06-20-2012, 05:12 PM   #20
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Quote:
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So the short story is I got married back in October.
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