Copyright Question

Discussion in 'Business of Photography' started by ed_farmer, Oct 11, 2017.

  1. Yes . . . I'm going to contact a lawyer but I'm starting my research here . . . Just looking for information before seeking the advice of someone who will have a financial interest.

    Over the last 15 years, I have shot hundreds of weddings for a particular studio. I have never had ANY form of contract. They email me information, I contact the bride, shoot the job, process the images, mail them to the studio, they mail me a check. I do receive and file a 1099 from them on my schedule C.

    Since there is nothing in writing, this is not "work for hire".

    The studio has been giving every client a letter saying that they release the copyright to the client.

    As I understand it, the studio doesn't own the copyright. I do. They are assigning my rights to the client without my permission.

    What are my options? I still have copies of every digital image that I have shot for them. I understand the copyright violations are subject to treble damages. But, how would I go about determining my damages?

    Has anyone else here been through this or something similar?

    Thanks for the help . . .
  2. William Michael

    William Michael Moderator Staff Member

    It is reasonable to assume that you are in the USA ("check" and "1099"): It wouldn't hurt to confirm that as fact, perhaps the State or Commonwealth would be a good idea too, just in case there are nuances of others Law to consider.

    Especially with Wedding Portraiture, nuances of Copyright Law (and also Employment Law which can affect the former) do vary, according to location.

    These facts are also mentioned for the benefit of readers located outside the USA who assume that responses will apply universally.

  3. Spearhead

    Spearhead Moderator

    The problem you have is that there are no damages based on what you have stated unless the clients are selling the images or using them for promotion. Damages typically refers to what you would have made had the infringement not taken place but you receive no compensation after taking the photos. Presumably the studio makes some money on prints and albums but it's not something you have ever shared. Via your actions, you have given them the right to make the post-wedding revenue. You could claim that the studio has been violating your copyright all along but I'm not sure that would fly given your actions.

    I will point out that I am not a lawyer but have extensively studied copyright and negotiated intellectual property rights for/with big corporations. This issue, however, seems to be more in the common sense realm. I also assume, per William's point, that you are in the US.

    Since there is a likelihood that you will get nothing, you have to evaluate the cost of a lawyer. In many places in the US, there are legal organizations for artists that offer inexpensive consultation. I've used one (California Lawyers for the Arts) and it went quite well.
    William Michael likes this.
  4. William Michael

    William Michael Moderator Staff Member

    I’ll also point out that am not a lawyer and I don’t work in the USA, however from a business perspective and I think that I have reasonable business experience: the “issue” that you have outlined is certainly in the realm of common sense AND ALSO… I think that pursuing litigation would be in the realm of business numbwittery.

    Whilst I appreciate your question is about sourcing a clear cut list of your options, in reality what harm (or legally defined damages) are claimable or even relevant if the Brides and Grooms (think that they have) “copyright” of the images that you made?

    From a business perspective to a person who is “in business” that question is in the “who cares” basket: my advice is, before you make any move I suggest that you consider carefully all the possible outcomes.

    The first responsibility a business owner is to the integtry and the life of the business for which they are responsible.

  5. Just make it explicit before you shoot from now on that you are going to hold the copyrights to all weddings. The past is past.

    Then see how many clients choose you as their photographer
  6. If they can get into an argument over copyright ownership based on who took a photo because of a monkey selfie, I'm pretty sure that without a contract, you have the copyright. It's the studio's fault for not having a contract with you. Where it might get dicey is, the couple didn't hire you, they hired the studio. If you received payment from the studio, they could argue that you did that work as an employee versus as an independent contractor, but that would only be provable if they were able to show they paid you as an employee and not as a contractor. Interesting problem, but based on the whole monkey selfie argument, I'd say the copyright is likely yours since the studio was stupid enough to not issue a contract to its contractor.

    That said, be sure to insist upon a contract with any other studio you work for in the future.

    As for trying to get damages, like another poster stated previously, what financial damages are there? How would you prove that? Treble damages times zero is still zero. I would just use them in your portfolio and marketing, and leave it at that.
  7. Well, first, there's no treble damages. If you Timely Register your copyright with the US Copyright Office, then there are Statutory Damages, which can be quite substantial.

    As mentioned before, if no one, including your agency, is out selling your images or using them to attract traffic to a for profit web site, then you probably can't show actual damages. Your unwritten contract and past practices with the agency really clouds any case that you might have.

    I'd suggest getting a written contract for the future and retaining your copyright. I doubt it'll have any impact on sales, so long as the couples are allowed to use the images for "personal use" and given a license to that. If the agency provides books and prints, then you will need to give them a license to do that. If this is a business, then start registering your copyrights, to maximize you claims. I sell stock through Getty and there's much more money in pursuing thieves that the regular little deposits in Paypal from Getty.

    Lesson learned. Tighten up going forward.

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