Second Photographer Issue

[regina_f]

<p>Hello,</p>

<p>I recently hired a second photographer to shoot a wedding with me. Though there was no formal contract, there was an ongoing email that states the date/time/expectations/rate for this occasion as well as the other person agreeing to the terms. (Contract!) <br /><br />After the wedding, the other photographer made a rude comment about one of the guests in a very public forum and the bride and groom knew about it long before I did. When I learned about this I removed the comment and spoke to the other photographer. Now the second photographer does not want me to use their photos in the album that I have assembled for the newlyweds. They want to return the money I paid them for their services in exchange for ownership of the photos they took. <br /><br />My question(s) is (are) this...</p>

<p>1. Despite the formal contract, the emails serve as an agreement, yes?</p>

<p>2. Because I hired the other photographer to work for my business for the day, do I not own the photos? I understand that copyright is kind of in play here...the other shooter took the photos and therefore created the piece...however they did so because of my request to have them join me and work for me.</p>

<p>3. If I do not accept the return of the money, does this mean that I can still use the photos in my album? <br /><br /><br />I know this is insane...trust me, I NEVER expected this to happen. I am mortified at the entire situation and just need to know what avenue to take in order to cut ties in a legal and professional manner.</p>

<p><br /><br /></p>

[john_h.1]

<p>Assuming U.S. Law:<br /><br />1. Yes, assuming all the necessary elements are there. Also, due to the unique nature of wedding photos, enforcement can include being made whole by "specific performance" of allowing photo use, not just a refund. Assuming you don't have them. If you do, it should still overcome an infringement claim as you had a license that isn't revocable at will apparently. There are many practical hassles associated with bringing an infringement claim in federal court against you anyway before even getting the whether a claim has merit. If your arrangement arises to a contract, what would they argue in state court (incl. small claims)? Do the writings include or suggest a revocable license? I'm guessing no.<br /><br />2. See Circular 9 at Copyright.gov. Unless you finessed the writings and situation adequately to make it a work for hire, the other photographer owns the images. Assuming that is the case, you're argument is that there is an enforceable license granted for the use.</p>

<p>3. If the parameter of the writings/terms encompass such use, then there is a license for the use. There may also be implied licensing if the writings are not enough. Implied use for normal wedding usage ( a wedding album) should be easy to establish. Why else would they have been hired but to provide wedding photos? <br /><br /><br />See local counsel in case of variations and for specific contract interpretation.</p>

[john_h.1]

<p>It is probably time to get a work for hire type contractual arrangement going as well as surrender of the images by the time the shoot is complete.</p>

[regina_f]

<p>Hi John,</p>

<p>I agree. I fell for the whole "oh, my friend won't do....." and look at where it got me. The email stated that I needed her to be my second camera on a certain date, at a certain time and for "x" amount of money. I also sent her a list of responsibilities, such as photographing pre wedding shots of the groom, the cake cutting and the first dance. I very clearly stated that she was going to be the one to supplement my work because no matter how good we are, no one can be everywhere at once. <br>

Her contributions would be made in the form of the disc of photos given to the newlyweds, the wedding album and then any prints they choose to make to give as gifts or to hang in their own home. They do not have permission to use any of the photos from that day (that were taken by my company) for commercial purposes. <br /><br /><br /></p>

[john_h.1]

<blockquote>

<p>They want to return the money I paid them for their services in exchange for ownership of the photos they took.</p>

</blockquote>

<p>Revisiting the post, this line stands out. This suggests the second believes you own the photos. While acknowledgment of someone else owning something tends to be evidence of the other, in fact, owning the property, it is not as useful when it comes to titled property and intellectual property which has special rules for successfully transferring ownership. But, if you did own the images, namely the copyright to them, then the only remedy the second has to forbid use would be contractual. Which makes no sense.</p>

<blockquote>

<p><br />I fell for the whole "oh, my friend won't do....." and look at where it got me.<br /><br /></p>

</blockquote>

<p> Can we make the legal questions and the whole issue go away by asking the friend to put pressure on their friend, the second? Telling the referring friend you assured me that so and so wouldn't screw things up and can they tell the second photographer freind to knock it off. If I made a referral and that happened, I would be embarrassed and tell the second that they are the cause and that they need to make it right and that future referrals hang in the balance.</p>

[regina_f]

<p>We were able to come to an understanding. I went in to the final discussion with bases covered and walked away with the rights to use the photos in albums and the likes. If I were to publish them in a public forum I would have to credit her and her company. I have opted to not publish them publicly.<br>

I am grateful that my bride gets the photos she wants and that things did not have to escalate any further...now to move on to damage control.</p>

[john_h.1]

<blockquote>

<p>"I went in to the final discussion with bases covered and walked away with the rights to use the photos in albums and the likes. If I were to publish them in a public forum I would have to credit her and her company. I have opted to not publish them publicly."</p>

</blockquote>

<p>The second's decision making up to this point seems irrational as far a business practices go but it is water under bridge now except for the 'damage control'. Since you don't appear to need use of the images for any other reason than to give to the client and have no problem crediting should you decide to publish them in some way, it seems like a suitable arrangement to make it all go away. <br /><br />It may be tempting to discuss this with the referring friend still but it may get back to the second and lead to them acting irrational and petty again re-ignating the headache. There was little to lose and much to gain before but that is no longer the case. Its the other way around now. If the referrer asks about future work for the second, you can probably come up with some generic, but accurate, stylistic or 'right fit' type response or just a non committal response if they aren't pushing it.</p>

<p>I hope you found photo.net to be a helpful experience and visit again. Consider asking for a name change posted here from the admin so the second or others in the future don't find you discussing this stuff online.</p>

[johne37179]

<p>Unless you expressly contracted to "own" the images, the photographer retains all rights to them -- the typical contract gives you certain use rights, but no more. This is why contracts to own images and certain commissions are typically very high priced. I do some commission work these days where the person hires me to take a specific image that they will then own. These contracts are rare and the price is qute high.</p>

[zelph_young]

<p>An oral agreement isn't worth the paper it is printed on.<br>

You'll work it out but may not be happy with this guy afterward. He's holding you up - and could easily have a computer failure somehow if he's too unhappy with how things go.<br>

Yes, he's cheating you and the couple.</p>

 

[john_h.1]

<blockquote>

<p>An oral agreement isn't worth the paper it is printed on.</p>

</blockquote>

<p>What oral agreement?</p>

<p><em>"there was an ongoing email that states the date/time/expectations/rate for this occasion as well as the other person agreeing to the terms. (Contract!)"</em></p>

<p> </p>