Client selling my wedding photos on her SmugMug site

<p>Let me preface this by saying that my attorney is currently on vacation and I know that none of your are lawyers - however, I would appreciate all of your input in this.<br>

I shot a client's wedding this last October and as per our contract, she has permission to print the photos from the CD she has for personal use only. My prices are structured in a way that I don't have to rely on print orders. I also provide clients with an online gallery on SM so their guests can order prints.<br>

I now came across the client's blog with my photos (photo credit given) along with the note: "We've got pictures! You can view them here (insert hyperlink) and you can easily purchase prints too if you'd like." However, the link doesn't direct to my SmugMug gallery but a SmugMug gallery of hers that is password protected. Given the other text in the blog (location of where photos were taken), I know that I was the only one taking photos in certain locations which leads me to assume that she's selling the photos I own the copyright to on SmugMug (only I can't prove it).<br>

Our contract states that "the images may be used on personal web site as well as networking sites such as Facebook/MySpace as long as a copyright notice appears near the images stating that they were taken by [insert photographer's name" as well as a web link to [insert photographer's website] is place onto the web site. Furthermore, the contract states "Client must obtain written permission from and compensate [insert photographer's name] prior to the Client or his friends and relatives publishing or selling the photographs for profit."</p>

<p >I emailed the client and asked for the pw and in a nice and casual way on Friday but haven't heard back from her. I emailed SmugMug and their response quite frankly stunned me. Here's their response in its entirety: Dear .... Thanks for contacting SmugMug. Sorry, I'm not able to determining if the images are being used within the scope of your contract. We don't provide any legal advice on these types of issues. What we can do is forward your request to the site owner if you like. Let us know and we'll forward your message to them. Other than that, you would need to resolve this in court or between you and the other party."</p>

<p >I would really, really appreciate your input on a) how to handle this with regards to contacting the client and b) dealing with SmugMug.</p>

<p > </p>

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<p><strong><em>"Let me preface this by saying that my attorney is currently on vacation"</em></strong></p>

<p>My solicitor works in a company and has associates. A sole trader usually has a locum, or at least a mobile telephone.</p>

<p>If neither of these is applicable to your situation I would find another Legal Counsel, as getting ideas here is really only spinning your wheels. IMO you can’t do that.</p>

 

<p >No offense is meant or implied to those with legal credentials who regularly post here</p>

<p>WW</p>

 

<p>Katrin -</p>

<p>At this point you really have to wait for your attorney to get back. (IMHO) - Note: I'm not a lawyer. ;-)</p>

<p>1. Dealing with her - you've done all you can - short of a cease and desist letter. You have to ask yourself at this point - is it really worth the hassle, fight and getting a bad word of mouth experience from her.</p>

<p>2. Smug-mug - What their response is telling me is that they are: 1) a middle man in this - and the their Terms of Service - protect them from what users post and sell. 2) that the photos are of questionable quality or not what the person reviewing them from smugmug would quickly be able to look at and say "yup - taken by a pro" 3. they are taking the path of least resistance.</p>

<p>Finally - without a password or actually seeing the photos that she is selling - you have a very shakey case against her. You're making an assumption (and we all know what Assume does) that she has your photos up - without any solid proof.</p>

<p>Also - keep in mind - this discussion is fully google--able!<br>

Dave</p>

 

<p>If you're not embedding copyright information into the photographs you give clients, you really need to do so. This will help you prove later that the images are yours.</p>

<p>I know that we all try to prevent angry word of mouth from our clients, but there is a line that should never be crossed, and she is crossing it if she's selling your work and pocketing the profits (if any) herself. Is that the kind of relationship you're worrying about keeping?</p>

<p>if your attorney is sharp enough and gets a judge to sign off on it,<br>

is it possible or likely you could force smugmug to divulge the password<br>

--without telling the bride.-- and so that this can be acted upon before she has an opportunity to remove the photos in question?<br>

these photos could ( unlikely() be taken by uncle joe or aunt sally. and not violate your contract.<br>

YOU should proceed carefully and provide the attorney your photos before this goes to court.<br>

this way, if the origin of a photo is questioed,, you would have a copy of ALL your photos entered in evidence.<br>

the LAST thing you want is to get into a he said she said or she said she said dispute.<br>

it is called covering your behind.<br>

speaking an a non-legally trained person. smugmug could also be liable.<br>

at least they will in the future, need proof if there is a question about legitamacy.<br>

BUT this can only be answered by an attorney. what is right and fair is n't always obvious.<br>

maybe they will just tell her to STOP.</p>

<p> </p>

<p>You mentioned that your pricing is structured to preclude the necessity of print sales, and I assume you were paid for your work in photographing the wedding, so who cares if she sells the pictures? I know that its tough to see your hard work benefit someone else, but I think we as photographers can sometimes get a little too self-important. If your pricing were dependent (in part) on print sales, then I can understand your concern. If you however made a profit why spend the money on an attorney and loose the goodwill you generated by doing a good job? You mentioned that she credits you on the photos, therefore, anyone who buys them will know you took them, potentially giving you a nice referral business. Should you feel this goes beyond something you can overlook, first ask yourself if you had taken a worldclass picture and someone wanted to license its use from you, wouldn't you likely just tell the client she signed a consent to allow you to use the photo and go ahead and sell it, standing by your contract? Once I'm done with a wedding, I put the images online in a proofing gallery. I find most people buy within the first week, after that, I almost never see anymore sales. Like you said you don't need the print sales, I encourage you to let it go and sleep well tonight.</p>

<p>On the surface, it sounds to me like the client isn't selling the prints 'for profit', therefore she isn't breaking any contract stipulations--you don't know if she has put the 'taken by' notes in place. Also consider that she may have mixed other images in. I personally don't have a problem with my client doing that, but some might.</p>

<p>I encourage my clients to set up their own site (with my photographs) on places like Shutterfly. There, they don't make any profit off the prints--it is just an easy way for friends and relatives to obtain their own prints and I don't have to deal with putting up and maintaining galleries myself. Once the images leave my hands (via disk), I figure they will be used, probably in ways I never thought possible, and I am not concerned--short of someone (like another wedding photographer) claiming they took them.</p>

<p>I agree with Mark, how do you know she is even making money from the photos, maybe she's making them accessible to her family without spending money on the prints, in all seriousness who else would want to buy her wedding photos. When I give a dvd with negatives I cut the emotional umbilical cord, I just ask for credit where its due. A bride had once sent a thank you letter with one of my photographs attached to the hall where she had her reception. Is it on their website? Yep. Did they ask for permission? Nope. However they did contact me a few months after and refer me to clients every now and then. Would this business relationship exist if I had made a fuss and threatened with lawyers at the time, well what do you think? You should really take it as a compliment, she wants to share your work with those close to her and she hopes it wont come out of her pocket. Would you be upset if she printed the photographs for her parents or in-laws and they hung it up on their wall. Its not her personal use right?</p>

<p>110 percent illegal to do this. She has lied to smugmug, as they have a check box you MUST check before uploading images. Stating these are my images and I have right to sell them bla bla.<br>

I am not sure what your wedding contract looks like, but does it say anything about copyrights and sales?<br>

Def wait on your lawyer for the next step. In the meantime, do screen shots of what you see on her blog regarding this and save them. Do it immediately!!!!</p>

<p><strong><em>"110 percent illegal to do this. She has lied to smugmug, as they have a check box you MUST check before uploading images."</em></strong><br>

<br>

How do you come to this categorical conclusion? Which BTW is now a publicly documented accusation, made by you. <br>

<br>

We must have read two different texts, or else you have an insight and / or access to facts that others do not as even the OP has not seen the images in question: (OP CIT): <em>"However, the link doesn't direct to my SmugMug gallery but a SmugMug gallery of hers that is password protected." </em><em></em><br>

<em> </em><br>

<em>WW</em></p>

 

<p><em>"in all seriousness who else would want to buy her wedding photos" </em>I think it'd depend on how good they are. If SM allows her to sell usage rights for commercial purposes, Katrin could possibly lose out on a significant amount of revenue. That's about the only real concern I can think of. I strongly agree that the earnings associated with the loss of referrals probably dwarf any earnings you lose out on when she charges more than the cost of the actual print. </p>

<p>In addition, I think it's better to have an actual (calm) conversation with your client rather than sending out an email. It's just too passive and you can't tell if she understands your concerns. I'm also disappointed in SM's response. Aren't they trying to sell their service to professionals? </p>

<p>One last note- Did you know Facebook automatically strips out any copyright metadata?</p>

<p> </p>

<p>I am a SmugMug user and I don't ever have to check anything off that says I own the photographs. It could be because I am a pro-level user signed in to my account, though. That said, I think that Mark brings up an interesting point. If you're not depending on print sales, and they are crediting you as the author of the image, there is always the possibility that the buyer (who may only be paying the SmugMug default prices, which are "at cost", if that's what the bride set up) will know that you are the photographer who took the image and it might turn into a referral for you.</p>

<p>It's a tough call without knowing the circumstances under which those photos are available. It is unfortunate not to get the revenue from those images, but is the legal battle you're looking into undertaking worth that amount of money?</p>

<p>Wow, I didn't know that about Facebook. That's yet another reason I don't put my photos up there!</p>

<p>SmugMug settings do allow for making photos watermarked and even protected from sharing or right-clicking, but if a bride puts up photos from the disc, she may not follow all of those "normal" guidelines. It's a tough call. As long as you don't see your photograph making tons of money in a commercial setting, I think it's more trouble than it's worth to worry about it.</p>

<p>Just to clarify: WW - my attorney being on vacation doesn't mean I can't reach him. Just means I won't do it unless it's an emergency (i.e. <strong><em>me</em> </strong> being in legal trouble), not over something that can wait a week or two. Veronica, thanks for the tip, I already have screenshots of everything.Mark: I'm credited on the blog, not the unseen, mysterious gallery so I have no clue if credit is given where credit is due. ;-)<br>

That being said, I know that despite the most well written contracts, once the CD leaves my hands, the smoke can't be put back into the cigarette and clients can pretty much do whatever.<br>

What makes me think my photos are up there is the fact that the blog contains one of my photos right above the header "order your photos here" - thus using my image to advertise her account. I don't mind clients posting images on FB without copyright information as they're raving about them - free advertising - so I don't mind in the slightest. But setting up a password protected gallery? In any case, I'll have my attorney follow up on this with SmugMug once he's back and see where that leads us.<br>

In the future, I'll probably do what Nadine does, skip the uploading of the files to my account alltogether and have clients host them with whomever they like, less work for me.<br>

Thank you all!!!<br>

I do have one more thought though: where do we draw the line when contracts are ignored by the clients? Do we measure in "is it worth my time, effort etc."? or worry about clients badmouthing and thus letting contract violations slide because it's the easy thing to do?</p>

<p>First, you need to be sure they are your photos.</p>

<p>Secondly, in order to <strong>make profit</strong> on smugmug, she has to have the highest-tier membership (then, you can mark-up the print orders); currently that membership is $150/yr. The middle ($60) and lower ($40) tier memberships only allow prints to be ordered, "at-cost". Unless she is already a pro-photog, do you think she is going to pay $150 for the year, so that she can sell your prints at mark-up? It's possible, but doesn't make much sense.</p>

<p>I think, at most, she is allowing people to print from her smugmug at cost (similiar to shutterfly). Unless she has a pro-account (which is unlikely...) she is not making money selling your prints. If she is not making a profit, then I don't see any problems. All she is basically doing, is taking what she paid-for (CD/DVD) and allowing people to make prints (at cost). That is not too far from her just taking the DVD to Walgreens, and getting prints made for other family members. I think, that is to be expected when you sell-package the DVD of high-res images in the deal.</p>

<p> </p>

<p ><strong ><em >"my attorney being on vacation doesn't mean I can't reach him. Just means I won't do it unless it's an emergency (i.e. me being in legal trouble), not over something that can wait a week or two." </em></strong></p>

<p > </p>

<p >Thank you for the clarification. I understand.</p>

<p > </p>

<p >My initial comments then still stands: and it is now underscored, as you state that this issue can wait a week or two.</p>

<p > </p>

<p >The thrust of my initial comments was twofold: I stated that you were just spinning your wheels, I then wrote that IMO “you cannot afford to do that” – the implication being that wheel spinning in public can reap material that might, in the future, impede or disrupt any formal action that you might wish to take.</p>

<p > </p>

<p >Notwithstanding that fact, public wheel spinning can also draw comment which might put this client offside. </p>

<p > </p>

<p >Assuming that this Client has indeed done nothing illegal or even verging on morally wrong, accusations from third parties directed to one’s Clients, are not really useful for business growing. </p>

<p > </p>

<p >***</p>

<p > </p>

<p ><strong ><em >"where do we draw the line when contracts are ignored by the clients? Do we measure in "is it worth my time, effort etc."? or worry about clients badmouthing and thus letting contract violations slide because it's the easy thing to do?"</em></strong></p>

<p > </p>

<p >Specifically re this issue For Weddings, I don’t (didn’t) sell or give away digital files.</p>

<p > </p>

<p >If I did, then the fee would be commensurate with the client printing all the images for all the Family and guests. </p>

<p > </p>

<p >This was what I did for the last two or three years, when I contracted to my old Studio: I just took the pictures and handed all the files, everything, over at the end of the weekend.</p>

<p > </p>

<p >IMO it is no use having an “Agreement” which inevitably will need to be defended on many occasions. </p>

<p > </p>

<p >If you give or sell a disc of High Res Files, then the images will be printed, that is a fact. </p>

<p > </p>

<p >It is pointless to be the Policeman (or Policewoman) running around enforcing these issued after the fact. </p>

<p > </p>

<p >So the answer is to set the business up, such that it doesn’t matter. </p>

<p > <br>

WW</p>

<p>"110 percent illegal to do this. She has lied to smugmug, as they have a check box you MUST check before uploading images. Stating these are my images and I have right to sell them bla bla." Not necessarily, she thinks they are her images because she paid for them (bought the CD from the wedding photographer). </p>

<p>I'm not quite sure what the beef is. You have no idea if the client is making money, or if she paid Smug Mug the $150. in order to do so (I doubt it). Your photography was priced with providing a DVD of the images. Either the client can organize, manage and fill all the orders from family and friends, or put them up on a site for them to use so she doesn't have to do it all herself ... which would be a logistics nightmare for the average person unaccustomed to image management and printing.</p>

<p>This isn't happening on a public site, the client is controlling who can order prints by use of the password. Who besides family and friends would want prints anyway? </p>

<p>Either you are providing the images for use or you are not. If you desire to make money from extended print sales, then restructure your contract to be clear on that point. </p>

<p> </p>

<blockquote>

<p>I do have one more thought though: where do we draw the line when contracts are ignored by the clients? Do we measure in "is it worth my time, effort etc."? or worry about clients badmouthing and thus letting contract violations slide because it's the easy thing to do?</p>

</blockquote>

<p>I can't imagine a likely situation where I would sue a non-commercial client for using their images.</p>

<p>I don't see what harm you're suffering if her friends and family pay for the cost of prints they'd like via electronic means. Would you be up in arms if they were writing a good old fashioned check and ordering prints from the local drug store?</p>

<p>If she were using her images commercially, then yes, you have a right to be upset, and you'd have fairly easy recourse. </p>

<p>I have a contract with non-commercial clients not so that I have a means to sue my them, but to protect myself (and them) in the event of a lawsuit and to make sure that both sides have a mutual understanding of our agreement.</p>

<p>I can't imagine a bigger waste of time than suing a wedding client because they're making prints for friends and family after they've been given the images on disc. That's just me, though.</p>

<p>Eric</p>

<p>Maybe her smugmug gallery has cheaper print options to yours - and she does not want her family/friends paying higher for the prints than they need to.</p>

<p>Not sure how different this is from her burning a CD and giving it to friends who can then take it to CVS or Walgreens for getting prints.</p>

<p>Even thinking of suing her sounds like a bad idea to me - it'll just get you some bad publicity.</p>

<p>your contract should forbid resale of your photos, period. no written permission. forbidden. period.</p>

<p>what do you expect smugmug to do? they don't know who you are. don't worry about them.</p>

<p>wait for the client to email back. might be just a misunderstanding. a bit of friendly communication can solve so many problems...</p>

<p>It should be stated "for personal use only" in your contract if you don't want them selling your images.</p>

<p>Hope it all works out without the need for legal persuits.</p>

<p>OK - so she breached the contract, or the letter of it, or whatever. She shouldn't - but...<br>

Personally - my opinion is that wedding photos are the property of the people who ordered them and they should be able to do with them whatever they want - including selling them if they wish to do so. Wedding photos are highly personal - and IMHO the photographer should not consider them as his property. His job (paid for) is to take the pics (of negligible value to any parties other than the party directly involved, and - be honest - usually of negligible artistic value - although there may be exceptions).</p>

<p>Customers who order wedding pics are not cows to milk for ever and ever. The situation might have been different in the past when the photographers created negatives and their income was derived from prints - in that situation, they owned the negatives, so it was logical that additional prints should be made from those negatives - with appropriate reward.</p>

<p>Today, a digital image is as much of a negative as a finished product. Let's get real (notwithstanding the fact that it may be hurting the pocket). This is similiar to cell phone contracts or you-can-only-fix-your-car-here-or-your-warranty-is-gone schemes.</p>

<p>Now - I am waiting for fireballs coming from left, right and center.</p>

<p>A lawsuit is usually based on some concept of loss. I'm having a difficult time understanding what the photographer is LOSING in this scenario.</p>

<p>Who is buying the photos? Friends and family?</p>

<p>If the client weren't selling the photos directly, would the photographer have the opportunity to sell the same photos to the same customers for a mark up?</p>

<p>Would those clients pay a mark up for these photos, or are they only willing to purchase them at cost?</p>

<p>If the client had the photos printed at a local print shop/pharmacy and sold them to her friends at cost, would that be taking income away from the photographer?</p>

<p>How much could the photographer reasonably expect to make from print sales from this particular event?</p>

<p>Is negative word of mouth from this client worth less or more than the potential proceeds from these print sales? Or would it be better for the client to perceive that the photographer is very professional and agreeable and recommend the photographer to her friends, neighbors, and colleagues?</p>

<p>This is the Facebook age and people are going to share photos online. The more important the event, the higher the likelihood that they'll share the photos. If the photographer succeeds to make things difficult for the client, the client will share photos via some other venue. Welcome to the 21st Century. The client IS providing the agreed-upon credit. If she wants to sell the photos to all of her friends, it's effectively free advertising for the photographer.</p>

 

<p>If the big movie studios can not stop copying of their multi-million dollar movies, why would any one think that they can? Times have changed, price your work accordingly.</p>

<p>Unless any of these guys is a registered lawyer, we shouldn't even be talking.<br>

____________________________<br>

I take it you mean that they are licensed to practice law? If one were licensed to practice law in Texas, for instance, one may not be licensed to practice law in California. <br>

___________________________<br>

No advice is useless and one does not have to be smart to have an opinion, some one stated, "Opinions are like ass holes every one is entitled to one."</p>