confirmation of film rights for a stubborn client

[dominic_.]

Good news for us Canadians, there has (was) been a motion put forward (in 2002 by Allan Rock) to change this part of the law, check out more at:

 

 

http://www.capic.org/

 

...there's a link on the front page.

[avellan]

Richard, that is such a simple solution. I don't know why I didn't think of it. With your

suggestion and the others, I just realize what the perfect answer is and it won't cost me a

dime and all my time. He will have to pay for the scanning at a lab and for the cd and I will

just come up with an action to place my name across the image. Perfect.

 

Thank you everyone for your help and suggestions.

 

Ivan

[dai_hunter]

Ivan said: I will just come up with an action to place my name across the image....

 

You can do that in PS using a layer and calling in a logo or © line of text from file (open a file with the text or logo and simply copy and paste that to the new layer over the image.) It can be sized to fit easily by using transitions in the layer if you are making images of different sizes; positioning is simple as the layer can be draged anywhere on top of the background image; colour or transparency can be changed as well as in any PS layer.

 

Second, if you don't want to fool with PS actions see this freeware:

http://www.bildschutz.de/eng Even the free version of that application will drop a © line or logo on up to five images at a time.(the inexpensive paid version is not limited to five.). Optionally, you can also overprint other text such as the word "proof" of "sample" using that application. It will make the overprinted text or logo anywhere from solid to semi-transparent (adjustable transparency value).

[robert x]

Ivan -

 

just a suggestion, but if you have only one of the sets of pictures that you actually can use, why don;'t you just say to your relative that he can have all the rest of the films, and charge him for your expenses (ie 199 ,or whatever, x film$ + developing$) ? This way you would be giving him what he wants and keeping what you want ? Just a suggestion, but you may also want to point out to him that unless he finds some models who are actually worth looking at then his business ain'y going to go very far....

 

just a thought.

 

robert.

[wind.dk]

If he has paid the costs, the models haven't refused to pose for your pictures (whether you could use them or not) and you have made a calendar and portfolio for all of them, the original agreement as you have stated it, has been fulfilled by all parties.

 

If he wants more from you it follows you will need further compensation either for the extra work and costs or for giving up your property (material negatives or copyrights or both). The former is likely quite expensive, the latter depends on how much the negatives and rights are worth to you (from what you write I suspect that's very little) and how much they're worth to him (a bit more maybe, but probably not terribly much either).

 

Or have you only made a portfolio for the girl who met your expectations? If the other girls have spent time on posing for you (also if only for their portfolio, it's not their fault if you couldn't think of any other photographic use for them - just how ugly are they?) and your relative has spent money on materials, I'd say you were in breach of contract there, whether it be verbal or written. They have provided what they should and you can't give it back now. The easy solution if they agree to it, is to turn over the pictures without postprocessing. Otherwise you're still obliged to fulfill your part of the deal.

 

I'm no lawyer, this is based on what I believe is right.

[dai_hunter]

Is someone getting scr*wed here?

 

You know, in a way, I would like to see a bit more of what is going on here between this photographer and his relative who is the model agent. I have investigated some modelling scams (including working with the BBC in Britain recently on one such scam investigation) and this case is getting really interesting... here is how it could work... and often does in the murky world of the �beauty biz�... in 3 simple steps:

 

1) Girl (wanna-be model) goes looking for an agency. (Remember if they were REALLY any good, as super-model material, one of the major players would pick them up in a heartbeat � they simply don�t need some backwater agency to promote them in a third or forth tier market area)

 

2) Agency says to girl - "You need pictures and here is what they will cost you. You pay us and we'll take care of getting your portfolio done. Just go see XXX who is our photographer." She could be a "dog" but, hey, all they really need is her money even if they could NEVER, EVER, get her any work as a model.

 

3) Agency says to photographer - "Gee, you want to build up your portfolio? We'll let you "test" our models for "free"... all you have to do is give them prints for their portfolio."

 

Simple. A classic TFP scam run by the agency against the photographer. And, at the same time, a classic "photo mill" or �modelling website� scam against the models. One of the keys is that the agency then wants... no... NEEDS... to control or have possession of some of the original photographic media so they can follow through with promises to "promote" the models (the so-called database). The photographer has worked for nothing, indeed is often out of pocket, but the agency then quietly uses the images, all without reference to the photographer�s copyright ownership or even asking for a use license, to:

 

* create the agency "book";

 

* create agency �head sheets�;

 

* create head shots;

 

* create model's portfolios to send to clients (if there really are any) MY NOTE: Agencies have even been known to just make colour copies of the entire portfolio - they NEVER ask the photographer for even one additional print;

 

* advertise the models on their website (often a separate charge to the model);

 

* create printed (published as print or electronic) composition cards for the models ("comp-cards", aka "zed-cards"). MY NOTE: From experience the printers NEVER ask to see any documented copyright clearance on reproducing such images, relying, instead, on "hold-harmless" provisions in their contracts for the printing work.

 

Meanwhile, the "agency" is trying to assure the photographer, and goes to great lengths to do so, indeed it is IMPERATIVE that they do so, that they are doing him a great favour by allowing him to shoot their models for �free.�

 

What raises suspicions... or should in this particular case... is one of the key points made here: that the majority of the "models" are plain; ordinary; inexperienced, and probably not worth shooting in the first place.

 

One of the scam variations is that the agency will NOT charge for the photos if they don�t think they can get away with it, but does charge for putting the "models" on their far and away overpriced website.

 

There are definitely a couple of RED FLAGS� waving about in the breeze here.

[avellan]

This has really generated a discussion. Thats what I like about this forum.

 

I guess I should clarify some things:

 

My cousin has never run a modeling agency which attributes to his lack of knowledge

about rights and other things. He wants to cater to a very specific niche which is the

"urban scene". This means that the majority of girls are of a specific look (that does not

mean I am referring to ethnicity). Don't know how to say this without insulting someone or

causing an uproar, but the girls are a little thick. Not that there is something wrong with

that, but its not my thing. There is definitely a market for that look. So before I get any

angry responses I apologize for the lack of a better word. And for those who think being

thick means obese its not.

 

Now, I have not done any portfolio for any of them with the exception of one girl who I

have stated before I gave a generous portfolio to. I have refused to do any portfolio for the

others because they can't do my pictures which was part of the original agreement.

Whether or not they are willing is not the point. I have kept to the agreement. I did the

calendar and did 1 portfolio for the model who also posed for me. Does that make me

wrong Ivar? I have not wasted their time nor mines. Agreement was simple if I can use

them for myself then I would proceed to make their portfolio. My cousin has not spent any

money on materials except for the film and processing. I did not accept any money for the

inks or papers because I believed if I offered to do the calendar as in the original

agreement I should be responsible for the prepress work and materials.

 

Dai is absolutely right, there are a lot of scam agencies out there. A lot of the girls have

told me me about the horror stories and the loss of monies to these scams. Some have

even said they just want to shoot with me. My cousin has given them that security. I feel

that ethically I shouldn't let them down. However, when I stated that I need to receive

some compensation for any continuing work and to be told those are his pictures, well...

 

That is why I posted my original question. To reaffirm what I thought was the law and to

give him insight as to what other photographers feel and believe. I am not a professional

photographer. One day I hope I will be and that is why I am building my portfolio. And

maybe one day I will get the nerve to post some images here when I think they are good

enough.

 

So I hope I clarified some things. My cousin didn't show up Sun. so he still hasn't read this

great discussion.

 

Thanks again.

[dai_hunter]

Here's the deal Ivan. Though I am actually a photo-journalist I am asked from time to time by a talent manager acquaintance to shoot new talent for him - as I am semi-retired I usually have time and can do it at little cost. I also do head-shots for student actors and some work with new bands, singers, dancers, and other performers. I ask for, and get, reasonable payment for the work considering that most of these groups are just starting out and have little money anyway, but I also get releases and retain all rights to keep my work from being ripped off.

 

Thereafter, the arrangement with the talent is that any photos can be used DIRECTLY by, and DIRECTLY under the control of, the girl or guy for their own promotion including reasonable repro rights but EXCLUDING any commercial use (CD covers, ect)... All of this work could be described as having "no commercial value" to me personally. The reason for the all rights release, however, and where I draw the line, is when an agent or agency (a third party) starts copying the work wholesale in ways I noted in my post above. There, they step across a line into commercial use where I demand that they (the agent or agency) license the images for the proposed uses.

 

Don't know where you are at or what ethnic groups you are shooting but it shouldn�t matter - the job of the photographer (if he agrees in the first place) is to make them all look gorgeous. I have shot both girls and guys; whites, blacks, Asians and Latins � every one is different and every one is a challenge and, oh! the personalities you meet. Thick? Here is a sample of a Black girl singer I shot that has a bottom that would make JLo look skinny - LOL

 

Good luck with your work as well.<div></div>

[avellan]

Dai, you are absolutely right about everything and I agree with you. I just want to protect

myself from supplying him the images and he will go off and make money on it and leave

me hanging. Plus the indignant attitude of his about him having the rights set me off to

get into this whole legal aspect.

 

Plus you bring up a point that has been mentioned to me and always has been in the back

of my mind; I should be able to shoot anyone and make them look good. I know I have no

problem with making them look good for their portfolio. Its my work that concerns me. I

have a certain vision of what I would like to do and only one girl has been able to give me

that. I feel that if I settle for his other girls I would be cheating myself. Maybe I am being

too critical or hardline or traditional about it but I feel any artist of any form should do

what they have in their vision. I fortunately have a job that pays my bills and I guess it

allows me to hold on to my vision of what photos I want to do and not have to sacrifice it.

 

BTW that girl is thin compared to the majority of his girls. :)

[silverfishla]

I have shot for several modeling agencies. The first couple of agencies, I shot on spec. and

they paid for the film and supplied models. I let them use the photographs any way they

wanted to unless they were used for profit (written in a contract). Usually the only money you

would receive is the initial billing for the Portfolio shoot (unless they use it for a Calendar or ad

that makes profit, otherwise the calendar is only a marketing tool to sell the models (print ads are

exceptions). I think that it's your obligation to let him use the pictures. Your initial agreement was

(if I am correct): Your photographic expertise for use with model portfolios and calendar in

exchange for film and processing. This does not include your time and effort for transferring to an

internet database (although I think he should be able to use them for this purpose). You NEED

to charge him for your services from this point forth and HE NEEDS TO PAY YOU. Any work,

such as extra prints, digital transfer to CD-ROM, retouching, etc.-you should charge him. He

doesn't own the film, and you have no legal obligation to give it to him but...I would strike a deal

so that everyone ends up winning. Oh by the way, never hand over your negatives to a

modelling agency.

My other recommendation is to try to make sure that the quality of your work is upheld. You

might want to use some of these photos to get work that pays. All in all, this guy is kind of a

sheister. He should have made his models pay a fee for their portfolios.

[peter_dattolo]

There are a few things that nobody seemed to bring up (i could have missed it). One being the contract is between you and the models, not him. Any services, purchase's, time ect. you put into the photos is at first out of your pocket. When you choose to give/sell him the photos then at the point he is a "customer", you can charge him for each picture and also your time, service's, for each said picture. If you do choose to sell to him, express "one time use" on the pictures meaning he cannot sell them himself. Print your logo on the pictures since he states they are for a database and in th elogo state that "For Reprints Contact" then put your logo. If customers see that then they will know he cannot sell the picutres. I recommend this for all photos you take for sale. Also work into the paperwork that any interest in the photos (photo shoots, reprints)will be reverted to you. Models, customers alike dont choose on that one. The second thing was that issue concerning pictures on the web. You need to let the model know ahead of time if the pictures will be considered for web pages. Just because you have rights dont cover you posting the pictures on any page you might find or to whoever you want. The models may have relatives or coworkers that they do not want to see the pictures. The internet thing should be in the paperwork also but leave it as a check box then they will ask what you intend to do with them online. If they do not mind the answer then they will let you do it, if not then be very careful about not posting them online. Last the models signed a contract (legaly binding contract) with you not him. He has no rights to anything you do, but he has a right to "Buy" them from you. If you choose to do it for free then that is your right but i would charge him for what you put into it. Your "time" is different than replacing what you used for the photo shoots (film, processing, batteries, lights, rental of studio ect.). Sell to him at cost and make sure your name/logo is involved as i said before. ALWAYS, always do the paperwok ahead of time and show them. Do not start the project until they pay half if you have any doubts about them paying. Get a good portfolio even if its not models. Your technique will speak for you when they ask what they will get for the money. Ask for statements from the first few models as to your professionalism during the shoot and your willingness to "work" with them concerning the pictures. Put that paperwork inside your porfolio on nice paper so it looks good. My 2 cents from past experience, hope you can use it or at least it helps you out a bit.

[avellan]

Peter, you brought up some good points and one interesting item. But first the web thing

was not my idea. He never mentioned he was doing that in the beginning. Just recently

when he asked for the photos for his database. I'm sure he has discussed this with the

girls. (hopefully) However, I wonder IF I was to supply him photos for the web and lets say

he didn't discussed this with the girls, would I be held liable for the any lawsuit? Like you

said the contract is between the girls and myself and I took the photos so it makes me

wonder about the liability issue. Or is he liable for posting them? Hmmmm

 

Never knew that photographers had statements from their subjects regarding the work

that was done between them. Like a letter of recommendation. That is a great idea.

 

Thanks

 

Ivan

[daniel_m._german]

In which country are you? In Canada, the owner of the film owns the rights to the photographs, unless otherwise stipulated in a contract agreement.

[avellan]

Daniel, I am in the States.

[dinkydexy]

For the benefit of any UK readers, I would point out that with the ever-increasing influence of EC Law, in particular Contract or Civil Law, in this country the issue becomes even more muddied due to the fact that the question of 'Financial Gain' to or by one or more parties to an agreement is considered to be most germaine. (Gain includes a gain by keeping what one has as well as a gain by getting what one has not; loss includes a loss by not getting what one might get as well as a loss by losing what one has). If there is found to have been any dishonesty, intentional or subsequent, on the part of any appellant then the appropriation of any property belonging to another (with the intention to permanently deprive that other of it) may even be considered to be an act of Theft; a criminal, not civil offence. Clarification in the form of a written, legally binding agreement by all parties thereto (with or without any formal invitation to treat, offer and/or acceptance thereof) may not ipso facto form the basis of legal argument, but it may be relied upon by a party to any subsequent proceedings as tending to prove or negate any liability arising from, but not limited solely to, any act or omission on the part of any defendant or respondant.

 

Hope this helps.

[dai_hunter]

David,

 

Sounds like the law as it applies to the theory of "unjust enrichment" (by unfair / unilateral contract or otherwise)...is that what we're talking about here?

[john_henneberger]

The peril of seeking legal advice from people on the internet arises again. Being an attorney, I cringe when reading many of these comments. One example includes this discussion...

 

David Stoerman , feb 25, 2004; 11:19 p.m.

I don't believe you are in a work-for-hire stuation. It has been my understanding that if you were his employee, not a contractor (as you clearly are) then you would be doing "work-for-hire".

Does he pay you a regular wage? Pay employemnt taxes on you? Provide benefits? List you on any employment tax forms? If not, then you a are a contractor, and not producing work-for-hire.

 

Ivan Avellan , feb 26, 2004; 01:08 p.m.

David, you are absolutely right in regard to that I was never in his employment. I repeatedly told him I was not working for him but I was more like a freelancer.

 

My comments below are not to be considered legal advice but as personal comments. If you go see a lawyer, you will earn what actually creates an employment vs. contractor relationship. Telling someone what the relationship is repeatedly as Ivan did here is irrelevent. Imagine if it were? There would be no more employees in the entire country because one would need only say repeatedly to people they pay to do things that thay are not working for hire. If David's critera were accurate, I could get all sorts of people to do things for irregular pay, without paying employer taxes, don't even mention benefits, skip listing them on tax statements and magically make them independent contractors. More cringing occurred upon reading Ivan's comment later which said...

 

"That is why I posted my original question. To reaffirm what I thought was the law".

 

There are many more examples in this thread to demonstrate why Ivan should not feel that way but it would take all day to discuss them. The only actual advice I can provide is what is already mentioned by Brian Markowitz...

 

"...see an attorney to really protect your rights!"

 

Ivan, it will cost a lot less than you think especially when you HAVE to hire one to fix the bad advice you follow around here.

 

In a non legal context, is this struggle your in really worth it? Why not just let this one go and let your relative be "right"?