confirmation of film rights for a stubborn client

Hello all and sorry if this is a redundant topic, but I need confirmation of what I believe is a

correct interpretation of rights to film and pictures. Why? Because I have tried to explain

this to my client who happens to be a relative. I would like for him to read responses so it

may convince of what I have been saying, unless of course I am wrong in my

interpretation. I know there are links that I can find in this website or others, but I would

like to receive responses in layman's language for his sake. This is the situation. My client

is attempting to start a modeling agency. He asked me to take pictures of the models to

build their portfolio. He also asked that I create a calendar as a promotional tool for the

models to send out to potential clients. I agreed under the following conditions: He pays

for the film and processing, any portfolio that I do the model must pose for my own

pictures. Why did I agree to do this for no money? Because I need to build my own

portfolio and this was an opportunity to gain experience and have access to models. Note:

I had the models sign a model release form with my name and company on it and not his. I

made the calendar which includes the photos, design, scanning, and all prepress work. I

have only been able to use only one model for my own portfolio since the other models

are not acceptable for my own work. Now he wants to have access to all negatives and

slides so he can create his own private database and wants me to supply images for a

website. I don't have a problem with the web images but when I told him he cannot have

his own database of the models that is when the conflict started. I informed him he cannot

have access or store these images for his database because he does not have rights to the

film. He disagrees stating those are his models. Am I wrong or correct? Please state the

responses in normal terms because I want him to read the responses from professionals

like yourselves. Thank you for any responses.

The one who makes the image owns the rights unless otherwise agreed to in writing BEFORE the event...

Just saw another post about copyright laws and someone was nice enough to post the

laws. Makes me feel that my post was pointless. Nevertheless reading that post raised a

question; by me agreeing to do the calendar and the portfolios did that put me in the work

for hire situation?

I don't believe you are in a work-for-hire stuation. It has been my understanding that if you were his employee, not a contractor (as you clearly are) then you would be doing "work-for-hire".

 

Does he pay you a regular wage? Pay employemnt taxes on you? Provide benefits? List you on any employment tax forms? If not, then you a are a contractor, and not producing work-for-hire.

(example: Joe Photogapher shooting for Sears Portrait Studio holds no rights, they all belong to Sears)

 

A photographer working in the US for a studio as an employee has no rights to the images shot by him at the studio as part of his regular duties. (work-for-hire)

 

A photographer working for himself, but hired and paid for a job or package (calendar, archives, etc) retains all rights to the images.

 

However, all of this can be changed/lost in the presence of a previously executed contract (ie: put it in writing!)

 

I have only expressed what I believe is true, but I may be wrong. By the way, I ALWAYS get the details about rights and copyright in writing....keeps the misunderstanings to a minimum!

 

-Dave

No, it is not likely you were doing 'work for hire' unless the two of you had a contract agreement prior to shooting the first model.

 

 

 

The model release(s) you hold are for your use, not your relatives. If he wasn't so cheap, he would get a camera and film (or go digital) and create his own portfolio. It is not exactly rocket-building science (if the models are fairly decent looking) for someone to shoot images.

 

 

 

Last, but not least, you could contact a lawyer (it may cost money, but if you are in business, it is a business expense) to resolve the issues at hand.

Thank you Ivan for your excelent post on the dangers of dealing with relatives.

In return for getting access to his models, you would build their portfolio. Building their portfolio means providing them with pictures, and your client simply wants to organize them in a database. Now, I don't like to turn over negs, but you told him he cannot have his own database. Without the picture database, he's only getting a calendar, which was only half the bargain. Give him a CDROM, prints, or dupe negs and let him make a database.

I have an agreement with my lawyer: he doesn't take pictures to sell, and I don't give out legal advice. Nuff said.

David, you are absolutely right in regard to that I was never in his employment. I

repeatedly told him I was not working for him but I was more like a freelancer.

 

Gerald, unfortunately these girls except for one require a lot of Photoshop work and he

tried to take his own pictures at a shoot with a camera I recommended to him and it just

didn't come out as easy as he thought. :)

 

Peter, I have no problem making the portfolios but if you reread my intial post I agreed to

make their portfolios if they posed for my own pictures, but unfortunately these girls

except for one cannot be used for my images. Just to show my good intentions, that one

girl has a portfolio of ten images to start her career with. As I understand that is a lot

more than most girls start with. She really has potential and that is why I was generous

with her as she was for me in posing for me several times. The other girls, well .... As for

the database I really have a gut feeling that if he had it he would go off and do something

with it and I won't see a return on it. Plus I will not spend time scanning my images which

amounts to over 200 rolls of 2 1/4 film without getting some compensation.

 

Like Harry said it is unfortunate that dealing with relatives can be a sour experience.

Wanted to help him on his venture and now it is nothing but stress.

 

Thank you all for your responses and insight.

 

Ivan

Ivan, what about licensing the pics to him for use on the database. They would remain your intellectual property (i.e. your copyright) but he would have the right to display them in a manner that the two of you work out (i.e., he can display them on the internet and/or create 8x10s to hand out, or whatever you agree on.) The license can be for a fee, or not -- depending on what you want out of it. By allowing him to do this fee free (with a copyright statement from you) you would be increasing your potential exposure.

 

Just a thought!

 

Oh, and see an attorney to really protect your rights!

This, I think has been covered before in the forums but I'll mention it again, just in case. You don't mention where you live and I'll assume that you're in the US. BUT, if you're in Canada (and for anyone else who is) the rule of ownership is covered in section 13(2) of the Canadian Copyright Act:<p>

 

<blockquote><b>13(2) Where, in the case of an engraving, photograph or portrait, the plate or other original was ordered by some other person and was made for valuable consideration, and the consideration was paid, in pursuance of that order, in the absence of any agreement to the contrary, the person by whom the plate or other original was ordered shall be the first owner of the copyright.</b></blockquote>

 

 

So if you're in Canada, and don't have an agreement to the contrary, the person who asked you to take the pictures owns them. Now.. you say that no money changed hands.. but valuable consideration doesn't need to be money.. so it's not as cut and dry.<p>

 

In any case, living in Canada or not.. consult a lawyer.<p>

 

Good luck.

Brian, I am seeing him this weekend and I will give him your suggestion. Need to keep the

peace, but that brings up another question what is a reasonable fee? Will have to do a

search for that. Won't bring up that topic here or bother anybody else with suggestions.

You have all been a great help.

 

Berj, I live in the US and I really hope it doesn't come to that point.

You own all the rights to your photography. Models signed a release. This is the law. He has absolutely no rights to your film or even to create a profit from the sale of your images in any form unless previously contracted. I personally would suggest a usage fee.... but if its a relative, well I'd just let them do it and be done with it, and maybe ask for some of the profit from the sales of the images. If that did not occur, I'd simply let them use the images and never shoot for them again however. =)

Ivan: Never, and I mean NEVER, do work of any kind for relatives. They will bleed you dry and won't say thanks.

Haha Michael... it's been done to me many a time. Ever get that phone call... "Can you shoot our wedding for us as a wedding gift?"

"Plus I will not spend time scanning my images which amounts to over 200 rolls of 2 1/4 film without getting some compensation."

 

 

Solution here is take one roll of film to a good lab and have it scanned. Give the CD (or a copy) to your relative. Then if he wants the other 199 rolls, show him the invoice and let him know how much investment he needs to make to get the project rolling. Then you are in business, and upon finishing the job, you can try to collect your money (or be a little wise and ask for payment first: promise the lab will do the best possible job on your relative's needed images.)

David and Michael, you guys must be hardcore and not liked by a few relatives. Didn't

want to be that way. Tried to be helpful and remember this was supposed to aid me also.

 

Gerald, had the same thought. Duggal charges $35 per drum scan and plus $11 per CD.

But then he has the access to do what he wants with the pictures and I will be left hanging.

 

BTW, how long will photo.net keep this on the forum. Want him to read this on Sun. so he

can see I am not alone in my thinking. As I understand it, it will only go to the archives if

the moderator believes it is warranted.

 

Thanks again everyone.

I'm even more hard-core then the other guys...

 

Where you agreed to produce images for the individual models' portfolios put a copyright notice and logo on the FRONT of every one of them.

 

Once you have satisfied the deal you made with the individual models...

 

TAKE ALL THE ORIGINAL MEDIA AND BURN THE LOT !!!

 

Remember the "Theory of Relativity" --- NEVER, EVER, do business with relatives.

 

PS: and I think you can guess why the © notice goes on, too!

OK, since you made photographs for his model agency, morally, he has right to have pictures for his database. sorry, but that is why you made the pictures in the first place. but, he has no rights to ask for negatives or something else. esspecially since he has no contract signed with you. now, it is up to your will you give him additional pictures or negatives, but for good money. if he ask for more pictures, you may ask money from him for making calendars and for internet. you can always say to him that the original pictures are made for his agency, not for making a calendars etc (it was the case, but since he asking for more, you have right to do the same). my word, charge him a lot, A LOT. not just for the job you have done, but because of his attitude. he should say that at the beggining.

In our family, most of whom are successful business people working for themselves, we treat each other like regular customers when it comes to payment and terms of service.<p>The photo work I have done for family is billed at full labor rate (or $ for $ trade of services), and materials at cost. My work remains my property, and my (ethical) relatives wouldn't have it any other way. They understand that additional copies or permission to use my images in their business advertising, etc, must go through me, at additional cost.<p>It sounds like your relative simply wants something for nothing, and that shows a great amount of disrespect towards you.

Denis, "morally" I could continue giving him pictures. However, that was a subject that was

never brought up at the beginning when we agreed to only a calendar and portfolio.

Therefore, anything he wants now should be for money as you and everyone else says. He

is under the impression that he has rights to the pictures and therefore should not have to

pay for anything more.

 

As you all know scanning and prepping pictures is a time consuming job. I am still

working 2 jobs to pay for the investment I made to be properly prepared to do outdoor

and indoor shoots. So I am not giving up my little time to be morally correct.

 

Maureen, I am of the same mind set. Friendship is friendship and business is business.

Because he is a relative I agreed to this venture but that is as far as it goes.

Living here in Canada, this is how is works for me. When I am contracted by

someone to shoot for them. They own the shots unless told differently. If i wish

to have rights I must declare that up front.

Contracted to do work for someone means they get the goods. If there is no

money involved and I agree to shoot for them, Im agreeing to handing over

the goods.

If an amount is determined then I make sure it compensates me handing over

the goods.

Client hires client owns...unless arrangements made up front. Usually

however the client will not have a problem with work being in my portfolio.

Benefits both parties...

Good luck.

Ivan,

 

The real answer to this is simple. Whichever side has the money to hire a lawyer. A copyright is worthless without the $$$ to enforce it.

 

So it really does not matter if your "client" uses the images, or if you use them. Which one of you is going to put out the serious money to fight the other?

I only have one thing to add. If any type of future payment will be involved, get it ALL in writing, notorized, if it is a fee over $1000, and be sure to get a downpayment. If you've got it in writing, and you cannont collect your fee, it becomes something that can be reported to a collection agency or used in court. Also, having everything in writing, and i mean EVERYTHING is great for your own records, and will lend itself to future endeavors. I've been screwed a few times by not getting payment first. I was that guy, don't be that guy. Good luck. Oh, ps, if you do end up giving him any type of images to preview, and you're worried about him using them, put a watermark on them, like Corbis or other agencies do. Go into photoshop, and place your name across them lightly so that it can be seen, and would be a pain in the ass to remove in photoshop, or your name and proof. At any rate, there's no way to make prints from that, and it would just look bad on the web. and how ugly are these models that they would require that much photoshop? lol. Good luck.

Ivan - I agree with the guy who said have one roll scanned, and show him the invoice.

Sometimes people just won't believe the trust, or insist on special treatment.

 

Your customer has the right to purchase scans or prints of anything you shoot for him. it

might not be a RIGHT like in the Consistution, but as a professional courtesy. He did hire

or at least orchestrate the models.

 

I have had customers who have wanted to purchase the copyrights to my art and

photographs outright, but didn't understand my perspective. We are (potentially) giving up

any residual income when we provide a high resolution scan to a customer. After

educating them, and letting them see my perspective, they usually understand. Maybe you

should explain how you make money in business. Another businessman should

understand.