Unofficial photographer using wedding photos in portfolio

<p>Hi,<br>

A friend has a bit of a photography dilemma regarding the use of unofficial wedding photos in an online portfolio.<br>

In short, a couple asked an amateur photographer friend to take some photos at their wedding. This amateur photographer has used a selection of photos on their website as examples of their style of wedding photos as they are trying to establish themselves as a wedding photographer.<br>

The official photographer has now complained that an unofficial photographer has published these 'for professional gain' and has asked for them to be removed.<br>

For info, the amateur photographer owns the copyright to all of these photos, as well as all website content, and the official photographer was fully aware of the unofficial photographer's intentions (and expressed no issues) to use the photos in a portfolio/ on a website.<br>

Any advice would be greatly appreciated.</p>

<p>What did the wedding party's contract with the hired photographer say? To the extent that the amateur has the couple's blessings, it seems as though they should look at the contract they signed, to see if there's any language on this subject.</p>

<p>Thanks for your response, Matt.<br>

We shall ask the B&G to check the contract.</p>

<p>As long as the photos weren't taken by the pro, he's got no compelling justification to demand that the photos be removed. It wasn't 'his' wedding, just a wedding he shot. I can see why he'd potentially be upset (especially since he's likely to loose some print sales as a result), but I just can't see any compelling justification...</p>

<p>That being said, there are some relevant details which would be illuminating for us:<br>

Who has the 'official' photog complained too? and what justification has he cited for removal? What is the B&G's position (obviously they asked the amateur to shoot, but has that opinion changed?)? Did the amateur interfere with his shooting, or mirror his imagery?</p>

<p> </p>

<p>As requested:<br>

The official photographer has complained to the bride, and asked her to ask for the removal, saying that:<br>

"<em>It's really not very professional to have them on there </em>(The website)<em> when he wasn't the photographer and should people look at both mine and his website and see that we both have images it can lead to </em><em>confusion</em>."<br>

The B&G are still happy for the unofficial photographer to use the photos on the website and in a printed portfolio. They are happy with the quality of the unofficial photos, have requested some prints and used a few in an additional album they have had made. <br>

The unofficial photographer ensured that the official photographer was given priority for all shots, and spoke to the official photographer during and after the wedding about shooting etc. It was made clear that the amateur was using the day to help build a portfolio, and no request was made by the official photographer not to do so.</p>

<p>This situation is happening more and more, and normally, the official photographer can't really do anything to force the unofficial photographer to remove images from the unofficial photographer's own website, and which belong to the unofficial photographer.</p>

<p>I can't see how contract language could cover this situation, as it would have to be extremely specific.</p>

<p>However, it is bad form of the unofficial photographer to post images which were not taken in an official capacity as main photographer, particularly if the photographer wishes to enter the field of wedding photography. When one wants to join a profession, one does not wish to offend other professionals.</p>

<p>The difference in this case is the fact that the official photographer knew about the unofficial photographer's intentions (supposedly). If he indeed was fully informed, he should not complain now.</p>

<p>A middle ground would be for the unofficial photographer to post a note on his website (very clearly shown) that he was not the official photographer--that the official photographer was x. A nice touch would be to post a link to the official photographer's website.</p>

<p>Not that it makes any difference to this case, but I personally wouldn't care if the same situation happened to me. I don't sell by the print or image, so if the unofficial photographer's photos are better than mine, shame on me. Otherwise, as the more experienced professional, my photos better be better...</p>

<blockquote>

<p>the official photographer was fully aware of the unofficial photographer's intentions (and expressed no issues) to use the photos in a portfolio/ on a website... ...The B&G are still happy for the unofficial photographer to use the photos on the website and in a printed portfolio.... ...The unofficial photographer ensured that the official photographer was given priority for all shots, and spoke to the official photographer during and after the wedding about shooting etc. It was made clear that the amateur was using the day to help build a portfolio, and no request was made by the official photographer not to do so.</p>

</blockquote>

<p>I don't see what the problem is then. Perhaps the results were better than the contracted pro expected and has a different opinion now. In any event, if anything seems unprofessional, its the photographers posturing under these circumstances.</p>

<blockquote>

<p>I can't see how contract language could cover this situation, as it would have to be extremely specific.</p>

</blockquote>

<p>Agree mostly but some exclusivity language we see could apply. Even if it does, the photographer agreed to disregard those terms which may not be helpful to the cause.</p>

<p>Personal opinion:</p>

<p>I would disregard the hired photographer's complaint.</p>

<p>The amateur was asked by the couple to take pictures independent of any contractual arrangements the couple may have had with the hired photographer, therefore the amateur is not bound by it. He is free to do as he pleases within ethical and moral bounds and with consent from the couple. </p>

<blockquote>

<p>... as examples of their style ...</p>

</blockquote>

<p>IMO, I don't think it's right to use any shots where the professional posed the subjects and the amateur shot over the professionals shoulder. It really isn't "their style", it is the professional's "style", posing is half the work.</p>

<p>Other shots should be no issue.</p>

<p>I have to simply change my name to "what Nadine said" it might be faster.<br>

My question to the original photographer "what does it matter?" I mean really? Sure it's bad form to a degree for the "sidekick" to post, but I'm not sure it harms anyone's bottom line. I mean do you think there's a lot of work out there for photographers who show lots of work where the couple is looking elsewhere?<br>

Are there print sales or album sales that went to this other person, that would somehow have been sold to the b/g were those other pictures not in existence?<br>

My belief is that the other photographer just is missing the etiquette and having known the b/g felt that they were expressing their affection for them. Guests are there because they love our clients, they were invited to be a part of their day, they are not nuisances to our profession. They may stand in the way, take their own pictures and jack up the timeline, but they are not, in any way shape or form trying to be in our way. This person may very well be trying their own hand as a wedding photographer, one day they will know the same situation, they will hopefully remember and be chagrined, or not. It is just another aspect in the time in which we live. Adapt, overcome, and our craft will improve because of it.<br>

At least I believe that,<br>

d</p>

<p>Certainly this is happening more and more.</p>

<p>On the face of it your friend’s “dilemma” is multifaceted and cutting to the chase this is how it all occurs to me:</p>

<p>B&G engage an official Wedding Photographer, seems though s/he not too “seasoned” – (aka experienced), likely B&G are on the slimmer side of the budget line – which is fine just making the point of how it occurs to me.</p>

<p>B&G “ask” friend to make some “extra” photos for them at their Wedding: quid pro quo – B&G get extra and B&G know friend is a budding Wedding Photographer, anyway.</p>

<p>Inexperience of “official photographer” shows at Wedding in respect of not being astute or aware or skilled at shutting down someone else – that is if shutting down “friend photographer” was even on the agenda.</p>

<p>“friend photographer” posts wedding photo is and is very pleased – makes ego very big, now I am “professional” – beats chest.</p>

<p>“official photographer” sees website of “friend photographer” and has multiple dummy spits, most likely not even assessing what if any damage is likely to be done . . .<br />i.e. Official Photographer doesn't <strong><em>rationally assess</em></strong> what damage is being done to his business by this "friend" showing his photos of the wedding . . . and also does not think through what damage might the dummy spit entice, down the track:<br />Heavens - pause and think logically - readers here are champing at the bit to know the identity of this "Official Photogarpher" - not because of his PHOTOGRAPHY - but because of his DUMMY SPIT.</p>

<p>B&G now have dilemma – and ask friend (the OP) about it . . .</p>

<p>And OP makes post here.</p>

<p>Well – if OP is good and honest friend of B&G wanting to bring good karma to messy "dilemma". . .</p>

<p>Then OP will convey to B&G:</p>

<ul>

<li>that B&G should consider how complicit they are in the making of this “dilemma” - by asking for extra from “friend photographer”, in the first inst.</li>

<li>that “friend photographer” is not acting with any “professional courtesy” (there is a long thread on that topic elsewhere, OP might like to search for it).</li>

<li>that “professional photographer” is acting like a goose, writing what was quoted he wrote.</li>

<li>that geese should be respected – not cooked. </li>

</ul>

<p>My advice: <strong><em>B&G should take responsibility for their actions and clear up the mess and make polite requests of both photographers which THEY (the B&G) engaged to shoot photos at their Wedding.</em></strong></p>

<p>Suggested outcomes as per Nadine’s comments would be good, for all parties involved.</p>

<p>WW</p>

<p>I, likewise, agree with Nadine's middle ground suggestion and the William's expertly analysis above which, as usual, provides helpful clarity and perspective. The more rare occurrence is that I'll disagree on the advice portion this time.</p>

<p>While the clients allowed a potential mess to arise (unlikely as lay people to realize this consequence) their responsibility was dispatched (even if fortuitously) upon the following events...</p>

<p>"<em>I<strong>t was made clear that the amateur was using the day to help build a portfolio, and no request was made by the official photographer not to do so</strong></em><strong>.</strong>"</p>

<p>&</p>

<p>"<em><strong>the official photographer was fully aware of the unofficial photographer's intentions (and expressed no issues) to use the photos in a portfolio/ on a website</strong>"</em></p>

<p>The official (which really just means 'hired for pay via contract unlike everyone else with a camera') took ownership of any mess when they consented to this arrangement. For the hired photographer to not just complain but also hassle the clients about getting the friend photographer to remove photos is unwarranted<em>. </em>The hired photographer doesn't deserve to have the clients to take any responsibility or for them to do the bidding of their hired photographers demands. If anything, the hired photographer deserves their swift rebuke if they are so inclined to deliver it.</p>

<p>Likewise as to the friend photographer. Everything was up front and made clear with ample opportunity for any concerns of any kind to be raised. It didn't hurt that "<em>the official photographer was given priority for all shots</em>".</p>

<p>I agree with Nadine's mention of clarification between the hired shooter and the extra shooter as a professional courtesy but no one else owes the hired shooter anything else because the hirer shooter agreed and consented to what happened.</p>

<p>The hired photographer is responsible for the current "mess". The mess being their own complaints and demands of others.</p>

<p> </p>

 

<p>Is Brett Buckley the 'friend' or 'unofficial' photographer? Is it Brett?</p>

 

 

<p>I'm not sure it matters what the contract between the official photographer and the B/G says as it relates to the other photographer. Unless that person has some agreement of some kind, with the B/G or the official photog, I don't think they can be bound by any contract between the B/G and official photog. They wouldn't be a party to that contract. I would just move on. Nadine's remarks, as usual do point out what would be civilized conduct of the other photographer. However, I don't see a need to demonize this other photographer or belittle that person if one hasn't actually seen the website, or the persons photographs. In this situation, it sounds like the person telegraphed his intentions pretty clearly, and no one complained. A little late to try to put the genie back in the bottle.</p>

<p>Someone is taking things a little too seriously. So what if the other photog is using it "for professional gain"? The official photog is either really good that he didn't want his creativity stolen or he is a little insecure. </p>

<blockquote>

<p>“I, likewise, agree . . . [etc} . . [bUT] the more rare occurrence is that <em><strong>I'll disagree on the advice portion this time. </strong></em>[etc. expansion & explanation] . . . <em><strong>the hired photographer is responsible</strong></em> for the current "mess". The mess being their own complaints and demands of others.”</p>

 

</blockquote>

<p>Haha! [insert long debate between JH and WW]</p>

<p>JH: points are noted.</p>

<p>Rebuff in a nutshell:<br>

Indeed, the “official photographer” (IMHO) was (a) not in control at the time and (b) acted like a goose, with the dummy spit e-mail.<br>

However, whilst attribution of blame, and defining who is (ultimately) responsible in some manner might be desirable: an happy B&G and both photographers saving face, might be a better outcome . . .</p>

<p>The B&G are the lynch-pin: and this position is best suited to “tell and calm” the official photographer that they are very happy with his work and “ask” friend photographer to indicate clearly on the website, that he is “FRIEND” photographer.</p>

<p>It is my opinion, therefore (based on getting a quick and good outcome) for the B&G to act.</p>

<p>*** </p>

 

<blockquote>

<p>“Is Brett Buckley the 'friend' or 'unofficial' photographer? Is it Brett?”</p>

</blockquote>

<p>Or the G?<br>

To be frank, the <em><strong>actual</strong></em> relationship of the OP to the B&G crossed my mind.<br>

Nice question, Art.<br>

In the interest of actually getting a “good outcome” for this “dilemma” - it would be really great if this question on notice, were answered.</p>

<p>WW</p>

 

<p>To me, the real problem here is that potential clients may be misled by the pictures into thinking that the unofficial photographer has experience of shooting a wedding as official photographer which he/she hasn't. It's one thing to wander round a wedding taking a few snaps, and quite another to photograph as official photographer. What is more, some of the situations photographed might have been created by the official photographer.</p>

<p>It's a bit like photographers who may use pictures taken at a workshop to get real life clients. One often hears tales of photographers who have decent pictures in their portfolio who go on to ruin someone's wedding, and this is the kind of situation that it arises. Either the unofficial photographer has enough weddings under his/her belt as official photographer to show them - or he/she doesn't.</p>

<p>If it's just a matter of including one or two pictures from a wedding as unofficial photographer, while most of the material on the site was taken as official photographer, it seems to me less of a problem.</p>

<blockquote>

<p>The official photog is either really good that he didn't want his creativity stolen or</p>

</blockquote>

<p>To me that implies that the unofficial photographer may be intending to use photos some situations that the official photographer had created. In that case, I think the unofficial photographer should not even think of using the images to try to get clients, and I would certainly sympathise with the pro doing everything possible to stop them.</p>

<p>If I were a client who booked someone on the basis of those photos, then discovered afterwards that the photos had been taken by shadowing someone else, then I would be looking at initiating proceedings for fraud etc.</p>

<p>If the pictures were more reportage-y ones away from posed portraits, groups etc. and quite different from what the official photographer was photographing, ie. not shadowing the official photographer's ideas, then it's more of a grey area, using one or two might well be OK.</p>

<p> </p>

<p>Just to revisit and clarify: the reason I asked about the contract wasn't because I think it has much bearing legally/litigation-wise ... it's just a way to get a sense of whether or not the paid photographer's complaint is based on his having a serious stance on the issue, in advance. If the anecdotes are correct, and the B&G did explain it, and the contracted photographer had no beef... then there's no beef of consequence. Which is a matter completely separate from whether or not the amateur's representation of the B&G on his own portfolio might be construed as misleading to his prospective future clients.</p>

<blockquote>

<p>the unofficial photographer may be intending to use photos some situations that the official photographer had created... ...I would certainly sympathise with the pro doing everything possible to stop them.</p>

</blockquote>

<p>The pro didn't sympathize with themselves and chose to do the opposite when there was plenty of opportunity, if not actual prompting, to do so. Surely any shooting of any pre-arranged posing wouldn't have gone unnoticed at the time. Making a change of heart request of the friend photographer is one thing but, bugging the clients about something the pro photographer assented to, is itself bad form. </p>

<blockquote>

<p>If I were a client who booked someone on the basis of those photos, then discovered afterwards that the photos had been taken by shadowing someone else, then I would be looking at initiating proceedings for fraud etc.</p>

</blockquote>

<p>It may deserve pause but actions for fraud? The friend still had to correctly operate their camera with correct settings, framing. flash use ect. Plus, they just learned about a particular pose which they used quickly but might have used at the next occasion and so on. Unless they knowingly are incapable of achieving the results, there is hardly a basis for a lawsuit for 'fraud' merely because they just learned how to do something and then did so.</p>

<p> </p>

<p>As someone who was in the same or a similar situation last year - I can respond as to how it occured and how we (other photographer and I) handled it.</p>

<p>Setup:<br>

I signed a wedding contract with the couple in Sept 2009 for an August 2010 wedding - retainer was paid, and all was fine. I reached out to the couple a month prior to the wedding just to confirm everything - got a response that yep everything was fine, but couple had a "friend" who was getting started in photography business and wanted to know if I was okay with her shooting too. Not knowing better or wanting to risk losing the entire wedding - I said sure - no problem. Day of wedding - she shows up, shots a few over my shoulder, gets the couple for a few of her own, and then becomes a guest for the reception. (while shooting a few more...) . Day after wedding - boom photos go up on her fb page and people start complementing her on the photos and saying what a great job she did photographing the wedding....</p>

<p>My Resolution:<br>

I sent her an e-mail requesting that she point out that she was not the primiary photographer at the event pointing out to her that she was there as a "guest" and not the official photographer. I was not asking that she remove any images - they were hers. I just respectfully asked that she share credit.</p>

<p>Final Resoluton:<br>

She responded saying that she was sorry and she would fix it on FB right away, thanking me for allowing her to watch me work and seeing how I did things differently than she did. Also thanking me for being professional about it and understanding the situation, and actually allowing her to enjoy the wedding as more of a guest than a working session, since she was "a guest". She put a note on the album and a link to my sites on her fb page.</p>

<p>So - my advice - Be nice...Don't slam the other photographer, don't threaten legal action. <br>

Keep in mind that the bride and groom are the customers. You're not their customer. Had you "taken charge" of the situation, you could be the one who looks a fool. The other photographer was there because the couple asked them to be. If anything - the couple should have done as mine did and asked if it was okay. Had I said no - I might have kept the gig, but would have lost more than that. Or I might have lost the gig completely.</p>

<p>Dave</p>

 

<p>I think the hired photographer has no legal grounds to stand on. Unless the amateur photographer had an agreement with the professional he can do anything he wishes -- as long as he has the permission of the people in the image to use their images.</p>

<blockquote>

<p>The pro didn't sympathize with themselves and chose to do the opposite when there was plenty of opportunity, if not actual prompting, to do so.</p>

</blockquote>

<p>We heard one side of the story. I suspect if one were to ask the pro what happened, things might sound a little different. I also suspect that, like David below, the pro may well have been wanting to please the client and didn't mind allowing the other person to get some practise in, but didn't realise (or wasn't clearly told) that the other person was wanting to set up a wedding photography business using those pictures.</p>

<p>Of course, maybe the pro was told about that all in advance (seems unlikely) but even then - my concern is not for what the pro agreed to or didn't agreed to, it's whether potential clients coming to this person are being mislead about what that person's experience is and the situation where they took the pictures.</p>

<p>If this other photographer did the creative direction of posed pictures without the pro's input, then it would be less of a problem. But if it's a situation more like David describes, of this person photographing situations created by the pro, then it's much worse.</p>

<blockquote>

<p>Surely any shooting of any pre-arranged posing wouldn't have gone unnoticed at the time.</p>

</blockquote>

<p>The pro may not have wanted to cause an unpleasant scene at the wedding. But in any case, may not have realised that the pictures were to be used to set up a wedding business.</p>

<blockquote>

<p>It may deserve pause but actions for fraud?</p>

</blockquote>

<p><strong> </strong> Fraud would be an extreme case, depending on how the pictures are presented to potential clients. Borrowed from Wikipedia: "Fraudulent misrepresentation occurs when one makes representation with intent to deceive and with the knowledge that it is false."</p>

<p>In the UK, at least if it was implied by showing them on a website that these were pictures taken for a client as official photographer at a wedding but the photographer didn't actually have that experience, there would likely be an action at least for misrepresentation, and the basis for a complaint to the Office of Fair Trading for breach of trading standards. It assumes of course that there was some loss eg. the photographer didn't go on to do a brilliant job, and assumes the client found out about the misrepresentation.</p>

<p>If the misrepresentation was more blatant and deliberate, eg. the photographer said expressly that the pictures were taken as official photograper for a paying client, then it would much more likely be <em>fraudulent</em> misreprentation. Either way, potential clients would have the right to feel aggrieved at being duped into employing a photographer who tried to hold themselves out as having experience that they didn't.</p>

<p>This kind of thing arises I think more frequently than we realise - photographers take pictures at workshops where the artistic direction etc. is very much inspired by the person running the workshop. The photographer uses these pictures on the website, and the actual results for clients look nothing like the website portfolio. It's one reason why clients are well advised to ask to see complete galleries from recent weddings.</p>

<blockquote>

<p>The friend still had to correctly operate their camera with correct settings, framing. flash use ect.</p>

</blockquote>

<p>Most modern cameras can more or less do that with little user intervention. That's a relatively tiny part of being a wedding photographer, and a monkey can pretty much get it right most of the time (see the recent monkey self portrait that was in the news - that might be a good basis for the monkey to set up a portrait business)<br>

If the unofficial photographer makes it clear on his website that the pictures were taken as a guest at a wedding, shooting over the pro's shoulder, then there's no problem.</p>

 

<p>I should add to my comment about my personally not caring should the situation happen to me, that I would definitely manage the situation as it unfolded, regardless what I was told about the unofficial photographer's intentions beforehand.</p>

<p>I used to allow would be wedding photographers to shadow me, if they were polite. I don't anymore, because these would be photographers gradually became less and less nice, and less and less aware of professional courtesy. Now, I can spot would be photographers easily, because their offensive attitude is prominent from the get go. By 'offensive', I mean as opposed to defensive. Most of them assume I will not like them, so they tend to take stealthy measures to get their pictures, including using a tele zoom to shoot what I'm directing from the back of the room (!).</p>

<p>Others just baldly shoot whatever I shoot, including formals and make no attempt to hide the fact. They figure that if I don't stop them or say anything, they are just forging ahead. Now, I stop people. They can shoot anything else they want, but they can't shoot what I shoot (what I am directing), and they can't take time away from my shooting, or hog the best angles or direct their own sessions if that takes the couple's time and attention away from my need for their time and attention.</p>

<p>A lot depends on how they approach me. If they are nice, and honest, I have sometimes been nice in return, giving them some tips and actually using them as second and allowing them to do some direction on their own. I ask if they intend to use the photos on their website, and if so, I ask that they indicate they were not the official photographer at this wedding. More and more, though, these would be photographers take the offensive approach, and I don't have the time to try to turn them around.</p>

<p>The fraudulent misrepresentation would have to be material to be relevant. In my mind it is completely irrelevant if the photographer were "official" or not, if he was "paid" or not. One does not judge photographs based on the status of the photographer -- the picture speak for themselves. As a lawyer I don't think the photographer has any duty or obligation whatsoever to disclose the circumstances under which the photographs were taken. However, he does need the permission of the people in the picture to use their likenesses for commercial purposes.</p>

<p> </p>