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Best day turned into worst nightmare


jennifer_fall

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<p>Hi,<br>

So here is my scenario. My mom's fiance offered to do our wedding photos for free. We didn't ask, he offered. With much reluctance we accepted to appease my mom. He used my camera, memory card and lenses (all of my equipment was used). He uploaded the pictures to his computer after the wedding and left the images on my memory card for me to upload to my computer. Now he is telling me that he owns all rights to the photos and that if I use them in any way shape or form he will sue me. He is telling me that I have no rights whatsoever to the photos and cannot send them out in our thank you cards to guests, post them on facebook or anywhere else or even print copies. We had no contract whatsoever and nothing was said about us being able to use our wedding photos taken with my equipment. Does he have a case if I use the photos on facebook or print copies to send out in the thank you cards? Please help!</p>

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<p>Jennifer,</p>

<p>Is this for real? Please forgive me for doubting you but lately we've had some weird posts here and this one falls into the weird category. I understand the "appeasing mom" part of your story. The part I don't understand is, "I agreed to let someone photograph my wedding who had to borrow my camera and lenses to do it."</p>

<p>Have you considered talking to your mother about this?</p>

<p>I'm not offering legal advice. But if you've got the disk that the photos were on, I think my inclination would be to go ahead and use the photos. I assume you're not planning to claim you took them. My guess would be that, if your mother's fiancé has threatened to sue you, you're already not planning to have a close personal relationship with him. </p>

<p>Will</p>

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<p>Here is my two cents as a US (California) based attorney. Look at the contract law concepts of "consideration" and "meeting of the minds" Wikipedia has a good summary. Without providing you with legal advice and based on the facts that you have provided, it does not appear that you two entered into a contract because there were no agreed upon terms and conditions. As such, an argument can be made that his conduct was a gratuity (a gift) for which no compensation is needed. However, it could be argued that there was a quasi-contract, which would require that he be compensated to some degree. <br>

The facts sound strange though, seems like this could all go away if you sit down with mom and fiance at some point...</p>

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<p>Kevin, Jennifer stated "My mom's fiance offered to do our wedding photos for free. We didn't ask, he offered."<br>

<br>

It would seem to me that as a gift, one would expect this gift to be used in ways considered normal and reasonable in today's Internet world to include sharing on social media, etc., copyright notwithstanding. <br>

<br>

In fact, under the legal definition of a "gift" without prior stipulation of conditions, as I understand it, there was intent from the gift giver, and the gift was delivered to the recipient, therefore the gift giver can no longer claim any rights to the gift. </p>

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<p>Yes, this is for real. We got into a huge argument because my mom posted wedding photos on facebook after I specifically asked her not to. My mom's fiance is not someone I would ever want to have a close relationship with and I don't approve of her marrying him (but that is not for me to decide). I know it seems strange to allow someone who had to use my equipment to take the photos. He claims that he used to be a professional photographer and did weddings for a living. He also claims that his camera and equipment was recently stolen. I don't know him well enough to say that he was just angry and be spiteful when he said it, so I want to make sure I have the rights to the photos before using them. And no, I would not claim the work as my own, I do photography as a hobby and wouldn't want someone to claim my pictures as their own if I took them and I know better. I was trying to avoid a conflict with my mom (we've had a tense relationship since he's been in the picture), which is why we reluctantly agreed to it. Will never make that mistake again!</p>
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<p>The photographer, i.e. the person who pushes the shutter, owns the copyright unless it's a work for hire or there is some contract indicating to the contrary. Doesn't matter if it's your camera and memory card. If you were standing next to him, pointing the camera for him and telling him when to release the shutter then you could claim joint copyright, but if you just gave him the camera and he decided what to shoot and when to push the shutter, he's the copyright holder. He was responsible for the creative act.</p>

<p>Unless you can show that there was some sort of implied contract (good luck proving that), he owns the images and has control over where they can be published and who can publish them. However it's possible you might be able to claim an implied licence to use the images by lending him the camera. He would still own copyright but you could use them for personal, non-commercial, purposes.</p>

<p>I suspect that a law suit would be more trouble than it would be worth and any damages that might awarded would be minimal, though I guess he might try to bring one just to make your life miserable. I suspect any law suit wouldn't get very far if the circumstances you describe are accurate. Just a guess though. Anything is possible.</p>

<p>Are you sure you didn't see this on Jerry Springer? Thanksgiving must be a barrel of laughs at your house.</p>

<p>The standard advice here is to consult an attorney familiar with intellectual property law in your state if you want an opinion that carries any weight. Getting legal advice off the internet isn't recommended.</p>

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<p>I don't get this. Why VOLUNTEER to take wedding photos and then NOT allow the wedding couple to use them ? What was the point of doing this at all ??!! </p>

<p>If I were to guess, this clown SOLD all of his gear to pay for something, and is now going to try and jump start his "carreer" with your photos. </p>

<p> </p>

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Bob, thankfully my mom lives nearly a thousand miles away from me

and I only see her every couple of years. Thanks to everyone for the

advice. I will contact an attorney regarding the matter. The only thing I

can say is that he had no problem in us using the pictures before the

blow out. He even said that he printed and put up an 8x10 but would be

taking it down until we sent him an 8x10. The only other thing I can say

is he will have a hard time proving he took the photos. Not that I would

lie in a court of law, but I would like for him to be able to provide actual

proof. He is a clown, and for someone who supposedly used to be a

professional doesn't act like one, and you can't find anything

whatsoever about the guy, which is freaky in itself. Anyway, thanks!

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John, I agree! What was the point in all of it? Was that his plan all along?

I don't know, but the guy had been creating chaos from the very

beginning. My mom and brothers are estranged for the most part. They

don't have anything to do with her. The most we can figure is he wants

her to himself? Who knows, the guy's a jerk and a creep if you ask me,

looks like someone you'd see on America's most wanted and been to

prison a few times. More than likely we will just hire a reputable

photographer, like we should have done in the first place, and do some

recreates (although my family lives states away so we won't have any

to share with them in it). So if you know of any good photographers in

the Spokane WA area please let me know.

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<blockquote>

<p>"as a US (California) based attorney. Look at the contract law concepts of "consideration" and "meeting of the minds" Wikipedia has a good summary. Without providing you with legal advice and based on the facts that you have provided, it does not appear that you two entered into a contract"<br /><br /></p>

</blockquote>

<p>California is part of the United States which has a Copyright Act which determines ownership of images. Absent a contract altering ownership or allowing usage, claimed to be the case here, the photographer owns the imagery and can assert authority (including infringement) over it. Infringement actions must be filed in federal District Court however which is an onerous task for a legal lay person to undertake.</p>

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<p>Obviously family pressure here, the ordinary way to deal with such behavior, seems toothless with this guy. From a legal standpoint, however, you may have a so called implied license</p>

<p>Implied licenses arise when the conduct of the parties indicates that some license is to be extended between the copyright owner and the licensee, but the parties themselves did not create an specific express license. The purpose of an implied license is to allow the licensee (the user) some right to use the copyrighted work to the extent that the copyright owner would have allowed had the parties negotiated an agreement. Generally, the custom and practice of the community are considered. Also, Implied licenses have been used to grant licenses in situations where a copyrighted work was created by one party at the request of another.<br /><br /><br>

Discuss this with a lawyer there. This may be your legal shield if your in-law really had the practical ability and actually were to to make a federal infringement claim.</p>

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<p>Seems like we are always in a hurry to take legal action. I believe there is some over reaction by both parties here. It's your mom. Leverage your mom to get the rights to your images. At least you currently have the images and you didn't say that you were dissatisfied with the work. I would use the images as I saw fit and if your mom just stood by and let it happen, then it was worth it to find out the truth about where you stand. If your mom defended you and broke up with him, then it was worth it to get rid of him. Win/win. You still have your husband and all the wonderful memories to come.</p>
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<p>Heh. I programmed the "copyright" field in my D700 to have "Copyright © [year] [my name]". Now, if I were to have lent the camera to someone, the metadata on all the photos they shot would contain that text. I wonder if Jennifer did the same on her D300?<br>

Perhaps the easiest way out of this unfortunate situation for Jennifer is to ask how much $ he wants for copies (digital or otherwise) of the images she wants? Just put it on a business footing and get it done with. Arguing will only prolong the delay in acquiring the images.</p>

 

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<p>I agree that an attorney should be consulted. But, if he made it clear from the beginning that he would take the photos for free, as a gift, then, regardless of copyright, no payment should be necessary. There are several issues going on here, whether he needs payment, whether you own the images, whether you can use the images, etc. Depending on how nuclear you want to go, you can either pay the dude a couple hundred bucks to give you all the images, or you can use that money to talk to a lawyer and have him write a letter to the fiance. The result may be the same either way, but the relationship between you and your mom may be very different, depending on how you decide to proceed.</p>
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<p>I would:</p>

<p>1. Spend a little money to consult a lawyer, you are not litigating, you just need an office visit to discuss this and see what your options are. It won't be that expensive. Just make sure you talk to one who does IP type law.</p>

<p>2. Personally I would just use the photos give the circumstances. I suspect he is just threatening to be a jerk and doesn't have the motivation or means to litigate you. If he doesn't even own equipment, I suspect he can't go forward and take it to court. Not including his travel expenses, etc. He can't go to his local small claims court as the wedding didn't take place there (I'm assuming). The gray area in my mind is that he did give you a digital copy of the images. I'll also assume he knowingly returned the memory cards with the images for your use. He had the option to format them, etc or tell you at the time of the return of equipment that you couldn't use them.</p>

<p>3. Most importantly, I'm just some guy on the internet. So like everyone else said, don't take legal advice off the internet. Spend a couple hundred bucks on option #1. It will go a long way.</p>

 

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<p>Peter S. writes:</p>

<blockquote>

<p>Perhaps the easiest way out of this unfortunate situation for Jennifer is to ask how much $ he wants for copies (digital or otherwise) of the images she wants? Just put it on a business footing and get it done with. Arguing will only prolong the delay in acquiring the images.</p>

</blockquote>

<p> <br>

Peter, she <em>has</em> the images already. The photographer left them on her SD card when he returned her camera to her. So she has the original, raw or high-res images. </p>

<p>•</p>

<p>Jennifer, has the photographer — your mother's boyfriend — given you a reason why he doesn't want you to use the photos? I'm having trouble thinking of reason why he would deny you the use of the images. <em>I expect my brides to want to "use" my images.</em> I try to control the ways in which they're used, to some extent, but you didn't mention any use that would violate my sense of what's normal and proper for a bride to do. If you'd said you were selling the images or entering them into a competition under your own name, well, that would be a different story.</p>

<p>•</p>

<p>Let me say again, I'm not a lawyer. And I'm not going to ask my lawyer wife about this one because lawyers generally are bound to tell you (a) what the law says and (b) what the <em>safe</em> thing to do is. I'm not bound by professional ethics to be so cautious. I also realize that it's easy for me to say what I'm about to say because if I'm wrong, it's not going to cause me any grief.</p>

<p>But I would also note that <em>you are not the photographer here.</em> I say that because, this is a forum for photographers and many of our discussions about law reflect the fact that, as business-people, we want to understand how the law applies to us. You are, in this situation, the <em>bride,</em> the client. You have some moral rights here, certainly, and probably some legal ones, as well. </p>

<p>Anyway, speaking as a NON-lawyer: I would take the fact that he delivered the images to you on the SD card as meaning you have permission to use them. And if it were me, I'd use 'em, for the normal things brides want to use their photos for: Facebook, prints, an album. If you think printing them for the thank yous or posting them on Facebook is likely to be provocative, then perhaps it would be prudent not to do that. But honestly, there's no way he's even going to know if you make prints, make an album. It's unlikely he's going to know that you posted a few on Facebook. I assume you aren't <em>friends</em> with this guy on FB, and it sounds like you may not be FB "friends" with your mother, either.</p>

<p>•</p>

<p>We tend to get a little technical here. For one thing, as amateur lawyers we have a tendency to imagine all kinds of things that could go wrong, theoretically. And we cling to our understanding of key points of law. But I think that it's highly <em>unlikely</em> (not impossible but highly unlikely) that he'll be able to do <em>anything</em> at all, other than get mad (and I'm not even sure why he'd get mad). He may indeed "own" the copyright here. Big flippin' deal. I hold the copyright to every wedding image I've taken — but my brides all the time do things with their images, including things that are in violation of the explicit license I gave them when I delivered the images. Trust me, I've never threatened to sue a bride. Unless the images are so extraordinarily outstanding that they have commercial value, his holding the copyright is, as a practical matter, a technicality. You've got the images, they're of <em>your</em> wedding, he offered to take them <em>for you </em>and <em>with your equipment.</em> </p>

<p>And I want to emphasize that, by doing so, I don't think you are doing anything wrong. Assuming that there are no other pertinent facts that I'm unaware of, then in my view — and I dare say in the view of a large majority of non-lawyers — you have a moral right to use these photos. They were taken <em>of</em> you, <em>for </em>you, with <em>your equipment, </em>as a gift given without contract or conditions. He may be armed with the pea-shooter of copyright. You in turn have the body armor of justice, not to mention common sense.</p>

<p>• </p>

<p>The fact that he used <em>your equipment</em> is an interesting aspect of this story. Who owns the equipment is one of the questions asked to figure out whether work is done by an independent contractor or as work for hire. It's not the only question, still, it's an interesting wrinkle. In addition, the fact that you have the raw files on the SD card is an interesting detail. If it were me, I'd put that SD card away in a box and hold on to it as it is, in other words, don't erase it or reuse it.</p>

<p>There are other aspects of this situation that suggest to me you have a legal leg to stand on. "Detrimental reliance" (a.k.a. "promissory estoppel") comes to mind. </p>

<p>•</p>

<p>Keep in mind also that you have some recourse. <em>If</em> he's got some hope of returning to professional photography, he's got a website, a Facebook or Google+ account, listings with services. <em>You have the power to fight back with a review in which you tell your story.</em> I know you don't want to do this. But it could be an option.</p>

<p>•</p>

<p>Final thought. <em>Would your mother really let this guy sue you, because you used your wedding photos? </em>If so, you have bigger problems here than what to do with your photos. I hope you can work them out.</p>

<p>Will</p>

<p>p.s. Just curious: Were the photos good?</p>

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<blockquote>

<p>she <em>has</em> the images already. The photographer left them on her SD card when he returned her camera to her. So she has the original, raw or high-res images.</p>

</blockquote>

<p>@William: Yup, missed that. Which, of course, makes his attitude all the more confusing.<br>

I still say the quickest way out may be to ask him what he wants for the photos and pay him (getting, of course, a written receipt and transfer of ownership/rights to all the photos). He feels his effort is acknowledged and Jennifer gets her photos free and clear. </p>

<p>I'm curious, too -- did he do a decent job?</p>

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<p>Good grief, if it were me personally, the very <em>last </em>thing I'd do is pay him. He offered to do the job for free. His offer was accepted on those terms. I would be inclined to think that paying him at this point would be, in some way, to validate retroactively whatever claims he's making now.</p>

<p>If I <em>did</em> pay him — which I wouldn't, but hypothetically — I'd insist on a detailed written memorandum explaining the transaction and detailing what I was getting in return for my payment. But forget that. Wy should she pay him? She has the images. If she were considering doing something out of the ordinary with them, then I'd stop being an advocate for the bride here and might become an advocate for the photographer. That is, if she was going to sell the images. But what she's told us she wants to do is <em>what brides do with the images their photographers give them.</em> If he had given her, before the wedding, a contract specifying that he didn't want her to post images on Facebook and if she had agreed to that, well, she might be bound by her agreement. But as I understand it there was no written agreement beforehand at all, no terms or restrictions articulated even orally. She simply wants to do what it is common and ordinary and reasonable for a bride to do.</p>

<p>He did the job without having been paid anything at all, which to me indicates that there was no commercial relationship here at all. He borrowed her equipment to do it. He's her <em>mother's boyfriend or fiancé.</em> He gave her the images on the SD card when he returned her equipment to her. I'd be inclined to say that there's virtually no commercial dimension to this controversy at all. This was a private, non-commercial arrangement among family members.</p>

<p>Not every disagreement among family members or even among friends rises to the level of a lawsuit. Not even here in the USA.</p>

<p>Will</p>

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<blockquote>

<p>what are the possible legal matters HE can raise IF you just go ahead and use the photos</p>

</blockquote>

<p>I was asking myself the exact same question - and what possible motivation he could have for his behavior? He may want to sell the images and thus not already have them freely available on facebook or elsewhere online? He may want to benefit from wedding guests purchasing prints or digital copies from him? But wouldn't he have to have some sort of release if he was to sell the images for some commercial purpose? Given that there is no written contract and he wasn't hired - wouldn't that potentially be a show stopper for this kind of action of his? Wouldn't he expose himself to a lawsuit for using images without permission? I don't know the answer - maybe some wedding photographers could shine some light on this issue?</p>

<p>On the other hand, if the bride was to use the images - wouldn't eventual payments be limited to actual damages incurred? Wouldn't he have to prove the amount of those damages? What if he hadn't sold a single one?</p>

<p>If one really was to consult a lawyer over this - then not really to escalate it into a lawsuit but just to get the information what the possible issues could be. The bride might be on some shaky legal grounds - but maybe so is he?</p>

<p>I do agree that I wouldn't pay him a dime - a gift is a gift - even though this one comes with some strings attached. Might actually be better not even consider the images that he took and get by with what other guests might have taken. Certainly not an easy decision - but there is certainly a lot of emotional ballast attached to them now.</p>

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