[lillymarieadams]

This question has probably already been beaten to death, but I am in need of some feedback and encouragement. Here is my story:

One of my clients has been using a couple of digital images that I have taken of her daughter for contests – the most recent one is the cover of Parenting Magazine. When I made it known that it is unacceptable to do this, she got very upset and said that because she paid me (she is a friend by the way who got a wonderful deal $40) and they are photos of her daughter, that she is allowed to use the photos for whatever she wants. She also told me she will not be using me anymore for photography. Now, I have been doing some research and most everything that I read points to her being absolutely, 100% wrong. I maintain copyright from the moment of the photos conception, correct? I don’t know why I am so upset over this, but I just need to hear some positive feedback from fellow photographers to help me feel better about the situation. One of the things I am concerned about is the “Work for Hire” situation. Because she paid me, is it a work for hire situation? Or does that only apply to employers hiring photographers. Would she be considered my employer?

Any feedback, links to articles, or anything would be greatly appreciated!

Thank you!

[slackercruster]

Don't know.

I will say if your a pro, get a contract snd spell it all out.

Good luck!

[LaurenOE]

My $.02 ?

I'd take screen captures of everywhere the picture is seen on the web.
I'd take some photographs of the magazine cover at newsstands.

Then, I'd take her to court and name the magazine in the suit.

The images taken for contests, as in head shots and such, are very different in use from a picture that appears in a National Magazine. Unless you signed away the rights to the image, the limited use of the images, that you were originally contracted for, has been violated.

Breach of contract and with national coverage, there are probable damages.

So in a nutshell, it's one of the reasons why I am not a wedding, child or family photographer...and I NEVER mix friends and business.

I'd call you two "ex-friends" now, unless you can find a way to work it out.

On the flip side, you can let it all slide, and credit yourself with a National Magazine cover that you did nothing to promote. Kinda a silver lining to your photography career. I'd probably go that route and have your friend work as your publicist. Very few people get rich (or retire) over a single image they take. It's the follow-up work that comes "after" that keeps the money flowing.

My images have been on the front page of Newspapers and have led to more work because of it.

National exposure is a good thing, even if you are taken advantage of initially.

Just don't let it keep happening.

[Medium FormatPro]

Although I'm not a legal professional I do have professional knowledge of just such an incident...

Go to court now and since this person has specifically told you of their intentions, perhaps a judge can place some enforcement onto them.

Let me give you an example. I take pics of you for any amount - lets just say 1k. I later give you ten copies of the pics, and that's all. It's not like I'm giving the person my memory cards, my computer, and anything else, just the ten pics.

IF that client that paid you the 1k tries to copy those pics without your specific written permission for anything besides a screensaver - then it is a violation of federal law. This also applies to whether they do it themselves or as to if some type of store would do it for them; such as Wallymart or Ritzy Camera. If the retail location does it; then they can be have their equipment immidiately seized.

Also as an example - I don't believe any magazine in their right mind would really want to do this - nor are they legally permitted to when publishing or distributing in the united states. Also noting; most judges will let you file on this one, but... once it does go to court it will be held over for another court. The court action itself is a drawn out process - unless... If that person makes further efforts to publish your work - then go to court and get an oder against it - now that one is a very quick process

[Wheatfield]

Ah, sue happy Americans. Gotta love them.
Yes, you probably hold copyright on the images, but really, ask yourself if it is worth the grief that enforcing your copyright is going to cause.
Anyway, if you are going to enforce your rights, you need a lawyer, not an internet forum for legal advice.

[Medium FormatPro]

U.S. Copyright Office - Can I Use Someone Else's Work? Can Someone Else Use Mine? (FAQ)

Something that is actually of use from the united states government. This even generally covers items without a copyright. Also noting the original photographer does retail rights and ownership of photographs taken - unless you happen to work at a place such as a television station, newspaper, and in some cases directly under the payroll of a publication. Also in some cases (although rarely enforced) that the computer administrator may aintain certain rights to items stored on their computer. So in all hopes you are that administrator or perhaps run under administrator settings on ones computer. BTW I've seen some interesting divorce cases regarding whom is exactly the administrator of the computer.

Again, unless the photographer overrides their own right under contract (usually written contract, and also usually witnessed) such as by overriding them by entering a photo contest and the like - then... Outside of selling someone a certain number of copies - and outside of an item such as a screensaver - that no other copies are ever permitted - ever.

If someone did this to me (tried to copy my work) it would almost constitute an act of war. I'd make sure that they lost most everything; all property, vehicles, etc... They would almost be living in a tent with a bus pass

[lillymarieadams]

I am not going to sue anyone. Knowing that I am right and she is wrong is enough for me. That is what I am asking from you people - if I am right.

[Medium FormatPro]

Ah, sue happy Americans. Gotta love them.
Yes, you probably hold copyright on the images, but really, ask yourself if it is worth the grief that enforcing your copyright is going to cause.
Anyway, if you are going to enforce your rights, you need a lawyer, not an internet forum for legal advice.

Not exactly accurate. You do not need a lawyer; just show up in front of a judge to file a complaint; whether civil (or criminal; btw the criminal one often needs a police report, but not always). This can often be done in person and in less than one hour - and without a lawyer. The judge knows the issues, and will deal with it accordingly

[magkelly]

Technically yes, practically speaking though, not really. Unless you got her to sign a release that maintains your rights to any images you took she can claim she had you working for hire. That's not really valid traditionally speaking but that is how it goes a lot lately. Unless you are willing to sue her she's going to get her way. This is a major problem with how the industry is working now. It used to be the photographer had unequivocal rights to any photos shot, retained them. But lately the whole industry has swung more to a shoot for hire mode and the law hasn't really caught up with that. Like it or not, that's what people expect, full use of any photos of them, no hassle from the photographer, no prints, just the photos on a CD to use for whatever they want.

Technically you can't use her image for commercial use sans her permission anyway. She would have to have signed that release originally to allow for that. Technically she's supposed to respect your rights as a photographer, get prints from you, and not post the pics you took sans your permission, use them anywhere without your permission etc, but practically speaking she's going to do what she wants regardless. (I'm not saying that's right. Just likely inevitable.) You can't stop her without going to court and asserting your traditional copyright to those photos and she knows that I'm sure. Counts on you being reluctant. If she's really determined? (Sounds like it.) She's going to do it and she's not going to care what you think.

If she thinks you're not going to sue her she's not going to be worried because "everyone does that now" and the way that she sees it is that it's her kid, their images and you're just the guy behind the camera who she paid to take a few shots once upon a time. As far as she is concerned SHE owns those shots, not you, and she doesn't care diddly for what used to be. This is why I don't quibble about that kind of thing. I make it part of the original deal. Waste of energy IMHO trying to even go there. You can't really stop them without spending $$$ to defend your rights. They know it and they don't care until you really do go there.

That's part of what they pay me now when I do the shoot. If they don't want that and I retain the rights, they sign a release that says that and they get a slightly lower price for my services. If they do then I make them pay a bit more but then I allow stuff like posting on Facebook, use for contests et all, but I also stipulate that I get photo credit regardless. I don't mind if they use them actually. I expect it, but if I don't get my credit then we will have a problem. Use online etc, that's par for the course these days, but if someone is claiming that they took those shots? That's a whole other ball game and I will be taking them to court over that kind of thing.

[alohadave]

Technically yes, practically speaking though, not really. Unless you got her to sign a release that maintains your rights to any images you took she can claim she had you working for hire. That's not really valid traditionally speaking but that is how it goes a lot lately. Unless you are willing to sue her she's going to get her way. This is a major problem with how the industry is working now. It used to be the photographer had unequivocal rights to any photos shot, retained them. But lately the whole industry has swung more to a shoot for hire mode and the law hasn't really caught up with that. Like it or not, that's what people expect, full use of any photos of them, no hassle from the photographer, no prints, just the photos on a CD to use for whatever they want.

Absolutely, unequivocally wrong (in the US). Work-for-hire has very specific legal requirements, and social conventions don't change that. The 'industry' has not gone to an increased work-for-hire model, and isn't likely to.

Technically you can't use her image for commercial use sans her permission anyway. She would have to have signed that release originally to allow for that. Technically she's supposed to respect your rights as a photographer, get prints from you, and not post the pics you took sans your permission, use them anywhere without your permission etc, but practically speaking she's going to do what she wants regardless. (I'm not saying that's right. Just likely inevitable.) You can't stop her without going to court and asserting your traditional copyright to those photos and she knows that I'm sure. Counts on you being reluctant. If she's really determined? (Sounds like it.) She's going to do it and she's not going to care what you think.

If you don't inform your customers what they can and cannot do with the pictures, this situation will happen every single time. It's part of defending your rights to set them straight beforehand.

If she thinks you're not going to sue her she's not going to be worried because "everyone does that now" and the way that she sees it is that it's her kid, their images and you're just the guy behind the camera who she paid to take a few shots once upon a time. As far as she is concerned SHE owns those shots, not you, and she doesn't care diddly for what used to be. This is why I don't quibble about that kind of thing. I make it part of the original deal. Waste of energy IMHO trying to even go there. You can't really stop them without spending $$$ to defend your rights. They know it and they don't care until you really do go there.

The problem comes from 'photographers' not being informed, and rolling over when they get pushback. You are making the problem worse by letting them do whatever they want and claiming that you are powerless.

[Wheatfield]

U.S. Copyright Office - Can I Use Someone Else's Work? Can Someone Else Use Mine? (FAQ)

Something that is actually of use from the united states government. This even generally covers items without a copyright. Also noting the original photographer does retail rights and ownership of photographs taken - unless you happen to work at a place such as a television station, newspaper, and in some cases directly under the payroll of a publication. Also in some cases (although rarely enforced) that the computer administrator may aintain certain rights to items stored on their computer. So in all hopes you are that administrator or perhaps run under administrator settings on ones computer. BTW I've seen some interesting divorce cases regarding whom is exactly the administrator of the computer.

Again, unless the photographer overrides their own right under contract (usually written contract, and also usually witnessed) such as by overriding them by entering a photo contest and the like - then... Outside of selling someone a certain number of copies - and outside of an item such as a screensaver - that no other copies are ever permitted - ever.

If someone did this to me (tried to copy my work) it would almost constitute an act of war. I'd make sure that they lost most everything; all property, vehicles, etc... They would almost be living in a tent with a bus pass

Do damages in your country not need to be tied to actual damages? It sounds to me like you are saying you can just pull any old number out of your ass and expect it to be assigned to you as damages.

[magkelly]

The problem comes from 'photographers' not being informed, and rolling over when they get pushback. You are making the problem worse by letting them do whatever they want and claiming that you are powerless.

No offense but this is absolutely my reality of shooting here and now. Maybe it's not your experience but it's definitely been mine and if I kept to strictly legal and more traditional methods of doing things I'd have ZERO business. Almost every client I've had so far as declined prints in preference of having them on disk and they definitely want full access to print and use of the photos for whatever. I do shooting, post processing and that's it. I can count on one hand the number of people I've shot so far who have actually had me order them prints. I know 4 pro photographers. Only one of them still works that way and that's because he has the big name to get away with it. He's been in the business forever and he's been amazingly successful. Few people would challenge him. But he doesn't even do weddings and stuff like that. His work is more commercial and high fashion oriented. He shoots for magazines and such. People seldom dispute the traditional model of business doing that.

But most of the low end photographers I know are very much working on this model. It's the only way they stay working. If you can get away with not allowing your clients to have full access be my guest but I've never run into a client yet that didn't want to print their own prints, use their photos online at whim et all. Trying to actually sell a traditional package of prints and retaining my rights that way has absolutely been a losing battle. I'm not really in the position of power, no, but short of refusing the clients I do get because they all want to go that route? I don't have much choice really. It's been totally counter productive trying. Ultimately short of hiring a lawyer to enforce my copyright, far too expensive a proposition for me, I have no real leverage, and I'm not into deluding myself otherwise, shrug.