no contract

<p>We just received our wedding pictures on c.d. from our photographer. A friend with a photography business. There was no contract ever discussed or signed, but we have emails and messages that show our conversations on pricing and expectations. (A price range was given, we have paid middle range...(was hoping to bump up to higher range after we got the pics)... and stated in emails that we would like to have a disc with the pictures on it and would not be ordering prints from her at this time since we are going to be going into the mission field and will be traveling for quite a few years, but would like to be able to print our pictures at a later date when we are able to have a home.) The disc received contains images of very low quality (Can only print up to an 8x10 on most websites.) We expected to receive the prints on a disc so we could go out and have prints done on our own, for our own personal use. The prints also contain the photographers watermark. Also there are many images that are in black and white. We have asked if we can have the ones that are in black and white also in color, and have been told that it is in "our best interest" to have them in black and white, and that she will not permit us to see the color versions. We have also been told that she will not give us images that do not have her watermark on them. <br>

This photographer is a young, starting off photographer. She is good at what she does, and we would really like to have this work out in everyones best interest, but she has responded to our request to sit down with her and view the pictures that are in black in white in color by telling us to never contact her again and that she will not return our calls. Since she never gave us a contract, but we do have copies of all of our talks with her via email, what are our legal options at this point? We really want this to work out best for all, but at this point we are dumbfounded as to what to do next....</p>

<p>If the emails discuss that you intended to use the files to make prints and the only files you get are low res and watermarked, then she seemingly hasn't delivered the agreed to product. Whether you have an enforceable contract, etc., should be discussed with an attorney.</p>

<p>Now you see that Bride and Groom having a contract is even more important than photographer holding one.</p>

<p><br />You should not call her "<em>A friend with a photography business"</em> - since clearly she is not. She told you "<em>to never contact her again and that she will not return our calls".</em></p>

<p>Was your email request accepted and confirmed ? Your request was not detailed enough and leaves too much room for interpretation, even if it was acknowledged.</p>

<p>I think you need to stop emailing, and see the photographer in person. You could hurt her business in many ways..., since she is clearly not a friend in my understanding of the word. However, this would not help you with getting what you were expecting.</p>

<p>Perhaps odering few prints from her could ease up a bit the situation, and possibly change her mind. After that, you could possibly warn other new brides and grooms about her photography business practice, or retaliate.</p>

<p>What country are you in? Makes a big difference.</p>

 

<p>California. I realize its not a country, but for legal purposes its one of a kind!<br>

We never even thought about a contract, but were clear in our communications about what we wanted her to do for us, complete with a list of pics we were hoping to get. We never for a minute felt that there would be any problems that could not easily be fixed or understood.</p>

<p>Is it out of line to ask to at least see the black and white pics in color? Even if she had some HUGE problem and the color pics look awful, we would just like to see them, and make the decision on our own if it is in our best interest to have them in black and white.<br>

And is it normal to get pics on a disc that you are planning to print yourself with watermarks on them??<br>

Before we go the legal route we'd like to know if we are being unreasonable in our requests. I'd much rather pay her the rest of the money we were planning to pay her (As a surprise thank you for a job well done..) rather than pay that money to a lawyer and ruin a beginners new business... just to get some color pictures and prints we can print for our home without advertising her business and at this point bringing up bad feelings when we look at our pictures of our wedding day.</p>

<p>Reread the original emails carefully. What exactly did she agree to do for you for what price.</p>

<p>Many professionals will not give out high resolution files. But, if there was no agreement to buy prints, then IMO it is implied that you would get usable files (good resolution, no watermark).</p>

<p>If things don't start to resolve soon, I would take her to small claims court. </p>

<p>I'm not going to give legal advice - other than to say - speak to a lawyer - now. Also - keep in mind that any posts or rants (which you haven't done) can be used as evidence. </p>

<p>As for standards regarding images - if the client specifically says I want to print, then I do not put a watermark or studio mark on the image. That is typically done in instances where the photographer is concerned that the client will be reproducing prints on their own - for example Lifetouch (school photographer) does it on the corner of every print. Some boutique photographers do it, some don't. It seems to be a matter of choice. </p>

<p>As for sizing - I personally crop all my photos before they go to the client, but I never change the DPI - so if they wanted to print a 5x7 into an 11x14 and recrop - they certainly could. What your photographer did is not only crop, but also changed the DPI (resolution) of the image so it can't be printed bigger than 8x10 - again a way of protecting potential sales. </p>

<p>Finally B/W vs Color (or any effect or filter) - again a matter of style and choice - some photographers will give multiple versions and effects, others will go with the "I'm the artist and I chose how my work is viewed line". Personally I give enough different effects, but if the client calls or emails and says hey I like this image, but can I see it in .... I do it. It may look better, it may not, but if the client is happy, I'm happy. </p>

<p>Keep all of your emails and communication with her. Since she has said (for reasons I can't see) that she will no longer talk to you, I'd say the relationship is already ruined as is any potential referral business from you. So talking to a lawyer may be the way to go. Conciliation or Small Claims Court is your likely destination, and in most states a lawyer is not required for that. But again - a lawyer will tell you what you can and can't do. </p>

<p>Dave</p>

 

<p>I think the size and position of the watermark makes a difference here. Sure, it is uncommon for photographers to include a watermark on the photos they deliver, but not unheard of. If it's unobtrusive then deal with it. This clearly was not covered in your discussions so in my opinion it's not worth fighting over.<br>

And some photographers provide only low res files for web and small prints. But typically this would all be disclosed and agreed to before hand, in the contract. Again, not having anything specifically discussed or in writing about what size prints leaves this a big gray area for you. You both have made assumptions on what would be acceptable in this case. Technically she may have honored her end of the agreement since you can go out and make prints... just not large ones. <br>

For the B&W photos there were probably white balance issues with the photos, which converting to B&W remedied. But no way to know for sure. Like David says, the photographer has the right to process photos how they see fit.<br>

We're clearly just hearing one side of the story here. I'm not saying she's right and your wrong, or vice versa, but things like this are rarely B&W (no pun intended). Yes, by all means consult a lawyer if you feel like pursuing this further, but I'm guessing not a lot was paid for this photographer's service and it's your word against hers. Unless you have more details on what was agreed to in writing you may be out of luck.</p>

<p>Karen, email is evidence accepted by courts if this dispute continues.</p>

<p>Karen, also with the B&W issue, I'm one who don't like to provide both color and B&W as well. If I apply effect, I only show the best. So I can see why the photog took offense of this request. Very few clients asked for both color and B&W but after some explanation, they never pressed on.</p>

<p>It's like asking a signer can you sign me the accoustic version and the rock version of the same song and let me compare.</p>

<p>you need to seek the advise of an attorney - they will be able to assess how to proceed.<br>

As far as the photos are concerned - most professional photographers spell out in a contract how you recieve your images. Because you did not recieve a contract you have to go back to the emails and see if any of this was discussed. The attorney should be able to advise you.<br>

Some new photographers turn images that are otherwise unacceptable in color to black and white. This is the only reason i would see her refusing. I give all images in color and then select ones which I think look best in B&W and give those too.<br>

Good luck.</p>

<p>Karen - as recommended above, I would contact a lawyer. You should collect and print out your correspondance, as well as what you were provided (the low res disc), and prepare a list of the discrepancies. Normally, I'd say try to work it out w/o a lawyer, but the "<em>telling us to never contact her again and that she will not return our calls." </em>kind of leaves you w/o any recourse or other response. It may be that she feels that since you had no written contract, she has no responsibility, but (esp. in CA!) the courts have said differently.</p>

<p>To be honest, the simplest solution may be to pay a lawyer to draft a letter which contains (from your correspondance) a list of what you demand, and hints that while you don't want to this matter public, and sue her, you will if you need to. Basically, you want her to feel that the easiest thing for her to do to make you go away is to agree to your demands... hopefully that will work... afterall, you have already paid her...</p>

<p>As far as the B&W vs. color images go... They are likely so bad (color and noise wise) that she converted them for a reason...and that's why she won't give them to you in color. I wouldn't worry to much about that (personally), instead focus on getting printable, watermark free, images... ie. what you paid for.</p>

<p> </p>

<p>One more thing to consider before contacting a lawyer: Being that you & your husband are about to head to the "mission field", you stand to loose your reputation as much as this photographer does.<br>

I would advise to make sure you have exhausted trying to work it out with this photographer before you go that route.</p>

<p>Maybe leave a message that says "I will contact a lawyer if need be but I don't want it to come to that. I am just wanting to SIT DOWN and talk about what I thought I was paying for and what YOU thought I was paying for... So we can come to a understanding. Because right now both of us feel cheated and confused."</p>

<p>P.S. I would back off the black & white VS. colour. In fact I would never bring it up again. The fact is, as stated by others, you will not want those in colour. They look like $$%$ in colour, I'm 99.99% sure of that. That is unless you take it to court, then bring it up if your lawyer says.</p>

<p>Thanks Micah, that's why I'm asking professionals here to help us be able to hopefully work this out with her. Our main purpose at this point is to be able to print our pictures at a later date without her watermark, and to be able to look at the pictures years from now and not remember this as a bad experience, but a well resolved one. I would like to help her in her business venture, and we may be her first unsatisfied customer. she needs to know how to handle things like this in the future. The last route we want to go is contacting a lawyer. This helps us as we try to have a face to face meeting with her, with a little bit more professional opinions. I like your message. And thank you others for your great words of wisdom. </p>

<p>You spent what, $1,500 - $2,500. You were promised a CD with digital files suitable for printing. You received a CD with digital files suitable for printing. Did your e-mail exchange include specifications about any of the following:</p>

<ol>

<li>Image size and resolution required to be submitted to client.</li>

<li>Copies of all images created or modified to be submitted to client.</li>

<li>Images to be all in color, or some specific mix of color and black and white.</li>

<li>Inclusion/exclusion of photographers watermark.</li>

</ol>

<p>If not, I think you have little recourse. If you find an attorney willing to look at your case, you will likely be charged $800 to $1,500 to review your information and prepare a short letter of your demands. That's all you would likely get. Is it worth it? Your only recourse is to sue in small claims court. If you do so, you have to be able to show the small claims judge that the photographer did not provide all the products that she was required to provide in the e-mail record. You have to prove the photographer failed to provide it. Your word is likely not enough. The photographer has to prove nothing, though she may present her own side of the case with whatever evidence she can produce. At best you have a 50/50 chance of getting some judgement against the photographer.</p>

<p>Organize your thoughts. Figure out exactly what it is your asking for, number of additional photos, removal of watermarks, etc. Be specific. Write a letter or e-mail to the photographer apologizing for any misunderstanding and requesting her to work with you and provide your requests. Be friendly and professional. I think this is your best bet.</p>

<p>Doug Santo</p>

<blockquote>

<p>"Did your e-mail exchange include specifications about any of the following:<br>

...<br>

If not, I think you have little recourse"</p>

</blockquote>

<p>If this wasn't specifically agreed, then you have to look at the correspondance and, if the file size/watermarks etc. isn't specified, work out what would normally be understood by "delivering a disc of images" (or however it was phrased in the correspondance). If most people would reasonably expect a disc of unwatermarked images you can prints at a reasonable size from on the basis of the correspondance, then that is what you should get.</p>

 

<blockquote>

<p>you will likely be charged $800 to $1,500 to review your information and prepare a short letter of your demands</p>

</blockquote>

<p>That's a bit of an exaggeration. At least over here, most attorneys would do the intial interview for up to about an hour and give you initial advice for free. You might expect a first letter to the other side to cost a couple of hundred dollars at most, should be possible to get it for less.</p>

 

I'd probably ask for the images in high jpegs. Since there was no contract I have no idea what to tell you other then take a chance in small claims court. Needless to say bring all of the emails. You could offer $100 for the high res and see what response you incur. I haven't been to court, but sometimes I've heard that emails and verbal agreements is often enough. Small claims court is much more lenient about contracts or no contracts.Here in California lawyers are the ones that run the small claims courts, at least in the LA area, not judges.

 

Also check and see if she has a lagiimate business license. I'm not sure if that will have any bearing in a court situation, but it's could make a difference. Check out the BBB.

 

Let us know the results, because this question is often asked on this board and it would be nice to hear about the results.

 

Good luck

<blockquote>

<p>You could offer $100 for the high res and see what response you incur.</p>

</blockquote>

<p>If you do that, you're in effect admitting that you didn't have the right to get the high res from the original agreement. He'll then demand a much higher sum for them, and you'll have shot yourself in the foot. If you do offer to pay extra for the high res, make absolutely sure that you make it really clear that you have the right to get them without payment, that you're only making the offer as a gesture to settle the matter quickly, and that the offer is "without prejudice" (I'm guessing that you have "without prejudice" in the US/California, but you should check).</p>

<blockquote>

<p>sometimes I've heard that emails and verbal agreements is often enough. Small claims court is much more lenient about contracts or no contracts.</p>

</blockquote>

<p>The exchange of emails and verbals <strong>are themselves</strong> a contract. It's not the case that there isn't a contract here, it's just proving what is in the contract that is the issue.</p>

<blockquote>

<p>The last route we want to go is contacting a lawyer.</p>

</blockquote>

<p>Good. That should always be the last resort, not an automatic first step.</p>

Karen, first offmy apologies to you. This must feel like you are in a miserable predicament. So since you have no

contract and lack of specifics you have very little legal recourse, and it would likely be quite expensive to hire a lawyer, I would look at it

this way, she now holds something you want very much, so he has the upper hand here. Threatening to give her a bad

reputation isn't a good way to go in my opinion. Rather at this point I would think about exactly what you want, and why you want it, why is the photographer acting this way towards you, and what you can afford to do now. First off, 8x10 with watermarks, where are they?

Bottom corner and small or across the faces of people? If they are just in the corner you should be able to crop them

yourself and still have a salvageable 5x7. Without a reprint release, any lab worth it's salt shouldn't print those for you with

the watermark on them, and a pro who might remove them in photoshop should be afraid of being sued by this

photographer. So if 5x7s aren't big enough for you, then you need to mend this relationship.

 

So what you want to ask for is the images they provided you with on a disc and royalty free reprint rights. If your story of not wanting

prints now because you are moving around is true, show them good faith of that and don't have the reprint rights kick in until a

year from now, and stick to that agreement. If you just really want the disc because her prints are expensive then you will

likely need to offer the photographer money for the disc. Figure that person wants to make print sales. It is their job, it is

how some photographers structure their business (I don't, I cover my costs up front, any print sales are just bonuses for

me), and that's how they sometimes are able to offer packages cheaply up front. For years this has been the standard, people bought the prints from the photographer, GASP! Only recently with the advent of digital as it become more common for couples to expect o be able to do their own printing of the images. This is because the photographer holds the copyright, and restricting printing of those images is within the full rights of the photographer unless outlined as otherwise in a contract.

 

What I would do is at this point, if I were in your shoes, is send them a hand written note if you have their address. In it say you do love the images

she took and want to be able to start over again with her (mend fences, some thing like that). Don't pursue getting the color

versions of the shots, if they were good the photographer would have included them on the disc, the b&w conversions

are likely saving poor exposures. If any of your prior emails with her were less than courteous, apologize for your tone,

and explain your wedding photos are just so important to you, and your emotions got away with you. Do not say sorry for not being clear with your requests

because that could be used against you if it does come to court and I think you sounded fairly clear with your request in

the first place.

 

Keep this letter in a very nice tone, and short and succinct. Nothing negative should be said against the photographer in it. I would end it with a

clear proposal for what you want from her. Think about how much you would likely spend on prints with her if you didn't

have the disc. Also consider how much you paid her for the gig. If it was $2000 originally, and she is being this tough, I

would offer $500 for disc of high resolution jpg images (fyi if they cropped some of the images a ton they may not be printable over

8x10 size) with royalty free reprint rights and no watermarks. If you only paid her $500 originally for the gig, I would

say offer $100 first. She may ask you to pay more (does she have a website with a la carte pricing that mentions how

much this would normally cost? If yes mention that pricing and offer that amount). Offer to pay for shipping of the disc too.

Should you HAVE to do all this? no, but she holds the cards right now.

 

Then take the letter and put it away for a day or two, then pick It back up and read it. Make sure there is NOTHING that

sounds like it could be read in a negative one. Have a friend read it to make sure it doesn't sound combative or critical.

Once it seems ok, make a copy for yourself and then send it and cross your fingers. If you don't have her physical mailing

address, follow the same steps just use email instead, but only use email if you don't have her mailing address. Sending

a real handwritten note makes it more likely that she will read it and not just delete it (don't put your return address on it if you

are really sure she hates your guts). Also a hand written note shows how much you care. This should hopefully open

the door for constructive conversation between both parties which will hopefully lead to you getting the disc. If she won't

give you the disc buy at least the most important prints you want because she shouldn't deny you that at least. She was your photographer after all. You can

find some way to store them,I am sure. Worst comes to worst, scan them once you get those prints and email the files to

yourself so you at least have those electronically. Hope that helps you. Good luck!

<blockquote>

<p>and a pro who might remove them in photoshop should be afraid of being sued by this photographer.</p>

</blockquote>

<p>Why? It's the customer's responsibility to ensure they have the rights to print an image, not the person or company engaged to do it.</p>

<p>I'm confused here.</p>

<p>The client owns the copyright to works produced by a hired photographer, no?<br>

<a href="http://www.copyright.gov/title17/92chap2.html">http://www.copyright.gov/title17/92chap2.html</a></p>

<p>Karen should absolutely be entitled to every image produced by the photographer and every iteration produced from it without interferences such as watermarks. </p>

<p>What size in pixel dimensions are the images that your were given. If she was maybe using an older DSLR with say 6mp-10mp and then crops the image a little to improve framing then the images provided would be as large as they could be. Another possiblity is they she could have shot the images at a lower resolution setting so again they may be as big as they can be. It is worth trying again to discuss matters with your photographer and seeing if you can sort something out.</p>

"The client owns the copyright to works produced by a hired photographer, no?"

 

No - copyright is owned by the photographer.

 

The "work for hire" exception to that is, for a freelance photographer, very

limited. See Wikipedia for further info, http://en.wikipedia.org/wiki/Work_for_hire. In particular the bit that says:-

 

 

 

"On the other hand, if the work is created by an independent contractor or freelancer, the work may be considered a work for hire only if ALL of the following conditions are met:

 

the work must come within one of the nine limited categories of works listed in the definition above, namely (1) a contribution to a collective work, (2) a part of a motion picture or other audiovisual work, (3) a translation, (4) a supplementary work, (5) a compilation, (6) an instructional text, (7) a test, (8) answer material for a test, (9) an atlas;

 

the work must be specially ordered or commissioned;

 

there must be a written agreement between the parties specifying that the work is a work made for hire.[3]"

<p>Simon, not according to "Copyright Law of the United States of America and Related Laws Contained in Title 17 of the United States Code" that I linked to above, which states:</p>

 

<blockquote>

<p>"(b) Works Made for Hire. — In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright."</p>

 

</blockquote>

<p>In particular, it clearly defines "works made for hire" to include "other person for whom the work was prepared" as the author. </p>

<p>This clearly contradicts the Wikipedia entry. </p>