Need a Pro's Advice about Negatives

I got married in July 2002 and had a pro photographer do my wedding, bridal and

engagement photos. In the contract I signed with her, it states that she

retains ownership of the negatives and all rights to make prints and use as she

wishes. When I originally interviewed her, she explained her policy about

keeping the negatives. That's just fine with me - one less thing that I have to

keep up with. Then I said, "But what happens if you move, or go out of

business?" She said, "If I ever went out of business, I would just give you the

negatives." This was the verbal understanding, but the contract just says she

owns them.

 

Yesterday I got a call from her assistant saying that she has gone digital and

is getting rid of all her negatives. She said she would give me the negatives

if I paid her $700 within the next two weeks. I asked what happens if I don't

pay, and she said, "They won't be available anymore." I said, "So you'll throw

them in the garbage?" She said, "Well, yes, if you don't want to buy them."

 

I understand that pro photographers retain negatives so they can make money off

of prints. That's completely understandable. But my wedding was 5 years ago -

I'll probably never order prints again unless my house burns down or something.

The negatives, more than likely, have no future value to her; however, they are

priceless to me. So she is essentially forcing me pay her $700 to not destroy

them. Is this not a violation of her implied agreement that she would own and

store the negatives in perpetuity? And doesn't it smack of extortion to call me

five years later, renege on the agreement to keep them, and force me to pay her

or else?

 

I just wanted to see what other professionals thought of this practice. Maybe

it's common practice but as a consumer it just doesn't seem right.

She is not going out of business which is what she told you verbally. She has decided to stay in business and convert from negative to digital. She has made your negatives available to you for a fee of $700. In the professional wedding photography business (I've been a wedding photographer since 1975) is is considered un-professional to sell the negatives to the customer. They are hers to sell but it is a frowned upon practice in the business. You should feel fortunate that you have an opportunity to buy the negatives. My wife and I got married in 1972. Our wedding was photographed by one of the top pros in Houston at that time. We took delivery of our original order, ordered some re-prints, and then 20 months from when we got married our wedding photographer told us that we had 4 months to make any other reprint orders before he destroyed our negatives. We never had any opportunity to purchase our negatives. And as he told us, at 24 months he destroyed our negatives. You may not like the price she quoted you but at least you have the opportunity to buy them.

Is there a part of the contract that talks about negative retention time? For example, "Studio will archive negatives for 3 years after the event date."

The contract only states that she owns the negatives. Period. It doesn't say for how long and certainly doesn't talk about destroying or selling the negatives in the future. She told me in our interview that she would keep them forever. Obviously she can't *literally* keep them forever, so that's when I asked her the "what if you move or go out of business" question. In other words, what happens if she can't or doesn't want to keep them anymore. She said if that happened she'd give them to me. But this was verbal. The written contract just says she owns them.

maybe money is the issue? if so, ask her if you make a deposit and payments if she will let you do that. then you will own them and no problems anymore. everything comes with a price and why not have them yourself and make as many prints as you would like anyway?

I think that the policy STINKS. I'm big on doing what I promise. When my studio went digital 6 years ago, we faced the same dilema. Since I had 30 years worth of negs. it was impossible to contact even 50% of the people. It was even a bigger problem for us trying to scan and print old negs. when someone wanted an order once a year. We ended up throwing everything out gradually and no one has ever complained. I tried giving them to a local museum and got nowhere.

 

In your case, I would call the photographer you got the commitment from (not the secretary) and complain. Even threaten to complain to the newspaper that important historical images are being destroyed. I would think the photographer would rather get $25. than nothing - $700. is a huge rip-off.

In this case I completely disagree with this photographer. $700 for your negs after 5 years...IMO ethic and decency should trump greed. Many photographers do get rid of negs even after a couple of years, and offer to sell them or throw them away, but $700 after this long and the alternative of throwing them away leads me to believe that your photographer is greedy. I would talk to the photographer not the assistant and remind him/ her of your verbal conversation, I know this photographer is not going out of biz. but in your case they might as well be because the negs will be trashed and that does no one any good.

$700. is her first offer. The assistant will probably get a big commission on that deal. Make her an offer of what they are really worth to you. By the way if you kept your proofs, you could probably scan them into a file that is more than you will ever need for most future applications. The negatives are probably not worth $700. unless you want top quality scans.

the assistant may be trying to broker her own deal. maybe the photographer knows nothing about the $700......

call her and talk this over with her personally on the phone.

 

you might get a better deal.

"Is this not a violation of her implied agreement that she would own and store the negatives in perpetuity? And doesn't it smack of extortion to call me five years later, renege on the agreement to keep them, and force me to pay her or else?"

 

As you can see from the responses here the opinion as to what pros here think of this practice is, well, negative. As to the questions cited above, they are legal questions, not photography questions. You need to speak to a professional lawyer who understands things such as the parol evidence rule (which is part of the story here), not a professional photographer.

Nicole - If the contract doesn't address the situation, then she can make up any amount she wants: $70, $700, or $7000. It is up to you to determine how you will respond to that.

 

I would schedule a meeting with her and make an offer for the negatives. If you think that it sounds from the contract that she was going to keep them for as long as she is in business, then say so, and tell her that you think that she should either keep them without a fee or give them to you for whatever you think is fair.

 

You could take her to court, but for $700 - not sure if that would be worth it unless you could do a small claims action.

 

Yes, it doesn't seem right. I never kept my negatives in the first place - I gave them all away. The model of keeping negatives is so old school - and then making up some amount in order to save them. I think it is pretty rude.

Nicole - keep us updated. Don't let this one go without finding out if you can do a small claims action. It might be only $10 to file, and if you have your original contract, I bet that the judge would be sympathetic since the photographer is doing something outside of the contract, and IMHO, demanding a very nice price.

 

Best of all, you won't need to hire a lawyer - and if your photographer doesn't want to negotiate, I'm pretty sure that receiving a court summons will help!

Call the BBB.

I thinks it's reasonable for a photographer in this case to charge a fee to cover - time

taken to contact you/shipping handling/archival packaging costs of the negatives. Time is

money, and it is reasonable, if you consider how many clients such as you he/she may be

trying to contact, that it is wise from a business standpoint to charge for this. With that

said, I can see $50 - $100 for such a service.

 

Obviously the photographer's $700 price, as they see it is liquidated damages, for the loss

of any future print sales. And though you could argue that enough years have gone by

that you would never order prints, how could a photographer stay in business if every one

of his clients never ordered prints in the hopes or knowledge that they would get free

negatives a few years down the road? This is how photographers make money, by selling

the images from their negatives/digital files. It's not being cold and calculating and

something often misunderstood and unfairly maligned about the photography business.

 

I've had clients who have given me very generous print orders, and I've felt comfortable

giving them the negatives, and clients who have, despite excellent work on my part, been

budget minded in their dealings with me, and so the last thing that I would probably do is

just give them the original negatives that I put my heart and sweat into.

 

I don't know your history with the photographer, but perhaps one tack may be to offer a

generous print order, and ask if for a much smaller fee he/she would be willing to include

the negatives.

 

If it's true they are threatening to destroy them if you don't purchase them, well that's the

part that bothers me. Though, it's possible they are just saying that to entice the sale.

 

 

But before you go getting all legal I suggest you try appealing to this photographer, by

letting them know, in some way, you understand they are running a business, and that the

work they performed for you has great value to you. This could soften things up and pave

way for a negotiation.

Sounds like the photographer has gone digital and now wants you to help pay for it.

Wow - thanks to everyone who offered their expert opinion. I read all the reponses and the concensus seemed to be that the photographer could technically demand payment for the negatives since she owns them, but that it wasn't good or ethical business practice to back me into a corner. So I called her, prepared to at least tell her not to trash the negatives until I'd had a chance to speak to my attorney. But I didn't have to go there. As soon as she realized I was starting to talk about contracts and legalities, she backed away from her demand for the money and said if I opted not to buy them, she would continue to store them for me as promised.

 

Now I am concerned that she'll say she's keeping them and then... not. I would never know unless I had to order more prints in the event of a loss. I am tempted to call back and tell her I'm nervous about the vagueness of our arrangement and I want it in writing exactly what the status of the negatives is, and what it will be in the future. Should I try to do that, or just leave well enough alone?

Nicole, what is it that you want from this photographer? Do you want her to promise to

store the negatives for you, indefinitely? Are you waiting for her to go out of business so

you can get them for free? When do you think that will be? What if you've moved, or if the

photographer moves, and there is no way for anyone to contact anyone?

 

The photographer has assured you that they will store the negatives for for now, but she is

under no legal obligation to give them to you. If it is your hope to negotiate with her and

get her price down, I don't think you are going about it in a very good way. I think, based

on how important this film is to you, that your best bet is to try to negotiate a price with

the photographer and buy them now while you can.

 

The photographer is running a business, and they do own the negatives, period. I refer

you to my post above.

It was common practice, with negatives, to offer them for sale some period of time after the event--long enough to be reasonably certain that it was long past possible reprint or enlargement re-orders. I know one studio that kept them for 3 years and then sold them for $300. Otherwise, they were destroyed.

 

I sense some ambivalence in your position re the negatives. If you want them, at this point, I would offer her something for them. You actually have the upper hand in that regard. If you refuse to pay $700 for them, but are willing to pay something, she is better off with that something than $0. In any case, it sounds like you won't be able to get them for free, so decide if you are actually willing to pay something for them to have the peace of mind of owning them.

One other thought Nicole. If you are hoping that the photographer will store them for you

long term, because you don't want to, or can't afford to purchase them, what happens if your

original album or photos do get lost or damaged? Well, then you are still looking at a most

likely costly replacement/reprinting of those images through that photographer.

The contract says she owns the negatives, but nothing about selling them or storing them. So they are hers to do whatever she wishes, regardless of any verbal statements she might have made. She had no obligation to offer them to you at all, and would have been within her rights to trash them five years ago. If they're important to you, pay the $700 and get them while you can. Make a counter offer if you want. But there's nothing to keep her from trashing them five years from now or next month if she decides to. And just as easily as your house might burn down and you lose your album, her studio might burn down and the negs are gone.

I don't understand....you say the negatives are "priceless" to you but you're not willing to pay $700?

Ohara- I don't know how long you have been a member of the PPA? - but selling wedding or portrait negatives will definitely make you a "pariah" amongst the membership.

If the photographer has fulfilled her part of the contract to date, then you can't expect something more for nothing. If you want a further guarantee, then you should be prepared to pay for that. If you are nervous about the safety of your negatives, then buy them. If they are not worth much to you, then don't worry about them.

 

 

Eric

$700 is an outrageous price for negatives over five years old. They have NO MORE VALUE to the pro other than selling them to you.

 

$150 + $15 shipping is a very fair price. But, how many rolls of film are we talking about? I think 150 bucks for 10 rolls in more than fair and profitable for the pro, including her shipping costs.

 

If she counters with $225 then accept her offer and close the deal. If she's adamant at $700 then spread the word... then again, was this a $3,000 or more pro shoot back in 2002? If so she's probably charging market rates for the negs.

 

Good luck.