Usage & Photographer's Rights

[rachel_stephens1]

I was recently contacted by a local jewelry designer wanting shots for a

postcard she needed printed and for future promotional purposes in magazines,

catalogs etc. She is starting out, like I am, and I took a look at her work and

felt her company had the potential to do very well and that it would be good

exposure for me to use on my site. I agreed to a ridiculously low fee of $200

to shoot the project, she had her own model, I gave her a DVD of all the images

in high resolution, worked my favorite from the shoot which she wanted to use

so she got free artwork for her postcard, and agreed that she could use the

images wherever she wanted. In exchange, I would use the image on my website to

promote my business. I even photoshopped in her logo and made it look like a

magazine tear. It looks beautiful. I showed it to her and she was elated. I

even delivered everything to her within 24 hours with no rush fee.

Today I get a call from someone calling on behalf of the model threatening to

sue me for using the image on my site. What? I called the designer and she now

wants my attorney's name and number.

 

We had a verbal agreement. She won't give me a copy of the model release she

has with the model. What are my rights here?

 

It was my understanding that as photographers, every image we create, from the

moment we create it, we own. If we shoot something for someone, you then get

into usage fees and maybe even copyright buyout.

 

My questions are, what are my rights? Does she have a case against me? Do I

really need to hire a lawyer which frankly I cannot afford as I am still

starting out)? What do you charge for usage rights and copyright?

 

HELP!

[mona_chrome]

I read your other thread on this topic, so may relate some to that.

 

First, someone else, the designer, cannot give you the right to use the model on your site.

But it is also common industry practice to be able to use the image for self promotion. Do

you know if the modeling agency has included the image in their portfolio or if the model

is using the image on her web site or in her own portfolio? That would be a violation of

your copyright--technically, even if she just has the postcard in her portfolio, that is a

commercial use of your image! You see how this could get wierd real quick if people

didn't cooperate and that is why it is usually a given that the image can be used by all

parties for self promotional activities.

 

Second, I think you said that you gave your designer friend the full use of the photos for

whatever. I wouldn't be going back to her with a request for more money if that was your

agreement. Did you ask her if she is getting threatened with a law suit also? You see, it is

imperative that you always get a release when you shoot a model, even if you are not

hiring them. My releases indicate who the client is, the use and also a mutual release

between the model and myself that the image can be used by each for self promotion. If I

get an agency release for the use, I still have the model sign a mutual release for self

promotion.

 

As to usage rights, these are always negotiable and it depends on how bad you want the

job and/or want to do the job. Generally, I don't do buyouts, in that case you do not have

the right to show the work as yours--most people don't know that. The alternative is to

sell "exclusive and unlimited usage for promotional activities by (client). Excluding sales

to third parties or the use of the image in any other way other than granted. Photographer

retains all other rights, including but not limited to, the use of the images for self

promotion." This is just a paraphrase, but the idea is that they want to not

have to come back to you for every little use, and you don't want them selling the image,

giving it to someone else to use commercially and you want to be able to sell the image as

art if it warrants such a use. Sometimes I will leave off the word exclusive as they don't

care if it is used by someone else not in their industry, they just want unlimited use with

no more fees. Once you explain that you are giving them free use for their company, they

usually are fine with that--they don't even understand the words buyout in most cases.

 

If I am shooting for a small company that makes a product that is updated frequently, I

generally am very easy on the usage pricing. It generally isn't going to be a national ad,

the product will change in 6 months etc etc etc--also what else are you going to do with a

shot of their product? So if you get a little more, it is more than you will get otherwise.

 

On the other hand, if the shot is an image shot of or for their product and they are a big

company with many uses, including advertising, all bets are off. They will pay big time for

those rights. It is not uncommon to get a good annual income from the sale of one image

in those circumstances, but that is for another day in your future.

[sknowles]

It wouldn't hurt to find a copyright specialist (attorney) if only for an education on your

current situation with the verbal agreement and your business practices in the future. I

suspect neither of you have any real rights over the usage because it's your word against

theirs, except you own the images. If they supplied the model, the release is covered by

either the store owner or model agency, and should have rights to a copy, if it exists. If it

doesn't, it's a really big oops on their part since the model may have some rights or say in

the commerical use of the images by the store. You have full rights to the images for the

display and promotion of your business for your Website, your shop, or your portfolio.

 

The question is, how much is the effort (time and money) to you for your rights in this

situation? Since you have ownership and use rights of the images, the burden of proof is

theirs if they decide to take action, another reason to have an attorney handy. Otherwise,

it may be a write-off with their use of the images, but at least you could send them notice

for recognition and/or credit in any commercial use (pamphlets, catalogs, ads, etc.).

 

I'm not a lawyer, but I can play one on the Web. In reality, find a real one. Good luck.

[david_niimi]

Am new here first post in fact but here is my tip on this that I get from watching Peoples Court almost daily.<br><br>

 

Also for the record I am not a lawyer or any sort of legal professional or amateur.<br><br>

 

Tip: Always get it in writing never ever do a verbal contract as if it comes to court it's a he said she said argument and you will most likely lose unless that other party admits to your claim which in most cases they don't hence you lose. If you don't have a contract with you get a napkin and write it on that never ever do a verbal contract. Get it in writing so you and the other party are both protected and should a judge need to be involved the judge knows what was and what wasn't agreed to.<br><br>

 

So moral: <b><u>ALWAYS</u></b> get it in writing!!!!!!!!!!!!