john_h.1

<p>A separate issue from the legal status is why it matters? Is there some genuine or realistic commercial value to the water mark? Is anyone actually going to look you up with out a link and then that result is anything actually substantial for you? Are you going to incur genuine losses if 3rd parties happen to copy and use the images? Where does this fit in your bottom line vs, some principle over a mere watermark? <br /><br />If it isn't a significant loss, consider that the organization asked for permission to use the image, you gave it and apparently didn't specify much detail at all on the use. Sure, maybe you can revoke future use permission and try to enforce a vague agreement or let this one be a lesson on how to approach such situations in the future.</p>

<p>http://www.amazon.com/Licensing-Photography-Victor-Perlman/dp/1581154364</p>

<blockquote> <p>However, since the heir does not own the negatives, having the copyright has little value. Am I understanding this correctly?</p> </blockquote> <p>For prints made from original negatives, yes</p> <blockquote> <p><br />If my understanding is correct, then both parties have to make a deal so they can both profit.</p> </blockquote> <p>Same answer.<br /><br /><br />Astute observation.</p>

<blockquote> <p>The "random opportunists" have done the work. Without them, there would be no money to be made.<br /><br /></p> </blockquote> <p>That's wonderful. He has no contract with or claim over the property merely because of this however. Fortunately, He could make an equitable claim of Quantum Meruit. ( http://dictionary.law.com/Default.aspx?selected=1692 ). Although profiting by way of infringement tends to amount to acting with "unclean hands" which will defeat claims in equity. Translation: He gets compensated for the good he brought but not if if he pulls a fast one or did something illegal in the process. Like copyright infringement. A good faith due diligence search and contracting with the original heir will likely save the day on that front. IOW, by having clean hands. <br /><br />The law provides for the save the day do goodery but, it doesn't mean the nice person gets everything. <br /><br /></p> <blockquote> <p><br />Had Ms. Maier left a bank account with, say, $500 in it, I'm certain those valiant ambulance-chasers would have been equally interested to find the distant relatives.<br /><br /></p> </blockquote> <p>And he who 'knew Vivian Maier' would be equally interested had it been $500 rather than a fortune to be made? He's making this grand wealth out of the benevolence of his heart?</p>

<blockquote> <p>It is not reasonable for the smell of money to attract lawyers who then search the world for any colorable 'heirs'.</p> </blockquote> <p>Apparently, then, it is better that random opportunists profit from the copyright assets that belong to such "'hiers'" instead. Despite asserting, simultaneously, that it is "right and just" that those copyright assets be protected both in general and on behalf of heirs. <br /><br /><br /><br /></p>

<blockquote> <p>I'll give even money that Maloof comes out on top. Sounds like he did his due diligence and got a signed release.Sounds like he did his due diligence and got a signed release.</p> </blockquote> <p>I'll "give even money" that the courts will follow the law instead. Although practicalities will most likely lead to a settlement where Maloof will get some piece of the action.</p>

<blockquote> <p><em>David Bebbington</em>: As regards suing, it would seem you have a good case in theory - in practice, <em><strong>the process would be long and costly</strong></em> and might well lead to no money even with a judgement in your favor.<br> <em>Barry Fisher</em>: One course is to just take her to small claims. Don't know if you'll prevail, but <em><strong>its not that costly</strong></em> and maybe you'll get some satisfaction.</p> </blockquote> <p><br />Funny.</p> <p>I'll add my opinion. Generally a small claims case is going to cost a day off of work and filing fees. Its not a guarantee but, that is usually how it goes. As to financial recovery, that is probably limited. While hi-rez was specified, it wasn't quantified and the substantial portion of the contract was performed. Maybe all the appendages vs. faces being shot combined with posting images contrary to the agreement (if it was memorialized as such) may help but it is fairly hard to quantify the loss from that. Most likely it will create a unflattering portrayal of the photographer which might be persuasive as to decisions where judicial discretion is involved. Its a pretty 'iffy' case. Then there is the matter of being able to collect if there is a financial judgment. That may be David's 'long process' after all. If the photographer did have higher rez pics, the pressure may induce their being turned over. But that should be the case now since it costs next to nothing. <br /><br />Meanwhile nothing is going to happen so, once again, its either go for it or walk away.</p>

<blockquote> <p>I disagree. The answer to the question <em>"How many of your 40 came through Facebook?"</em> does <strong><em>not</em></strong> solve the issue. In fact, basing a business choice predicated on ONLY the answer to that one question, might skew that business choice. Because, at the least, one also needs to seek to quantify how many people did NOT make the next step of contacting "Green Photog" <strong><em>because</em></strong> they had first read the Facebook page.</p> </blockquote> <p>I didn't see that William posted this until after my posting on the same topic. I think it illustrates the point well.</p>

<blockquote> <p>"I would think about why people call you and book you. Do you ask? I'm going to presume that you do, so I suggest you think about how many bookings you have because people said "I read your reviews on Facebook" or "I found your page on Facebook." How many of your 40 came through Facebook? If you can get to that answer, then you've solved your issue one way or the other."</p> </blockquote> <p>There is a flaw in the logic behind this suggestion. It doesn't account for how many might be turned off by the Facebook page who might have booked otherwise. Now that a supposedly false negative review appears prominently, that factor is now even more important which makes the number of successful bookings an unreliable indicator for the "issue". <br /><br />If a review page (of any kind) yields business despite negative postings, then the factor becomes less consequential since there is still a net gain in business compared to no page at all. Another factor, relative to this, is whether a review page is seen by prospective clients rather than just past clients making posts. No traffic means no value.<br /><br /><br /></p>

<blockquote> <p>"You can erase it or just make a new file in PS. You can also edit it and alter freely AFAIK."</p> </blockquote> <p><br />The odds that a photographer, who allegedly shoots in P mode such that it also appears in the exif data, is going to strip only pixel or file size related info seems rather slim. What does the sample show? Is there a modification date and PPI change or not? If there is, then it is highly likely all of them were reduced. If not, I'll defer to more knowledgeable people on the subject.</p>

<blockquote> <p>"this photographer did was use my photos on her website without my permission. I told her in person that for cultural reasons I can’t have certain photos online for the public, she said she understood before we even signed the contract. She already had put my photos up on her website before even telling me about the lost memory card etc, most importantly there’s one photo that my mother would be really upset about if she saw it that I specifically told her not to post. I’ve asked her numerous times to remove it but she hasn’t."<br /><br /></p> </blockquote> <p>Is this understanding memorialized in the contract itself? It would make a big difference in the overall assessment of what to do, if anything, in this matter.</p>

<blockquote> <p>"correct me if I am wrong but the file info is not going to tell you what pixel resolution the camera was set to. It will only tell you the pixel resolution of that file. In other words she could have decreased the file size in post which in that case gives hope to a higher resolution file somewhere."</p> </blockquote> <p>The exif data won't show the shoot date and time and also a modification date and time?I just looked at some images I recently shot and then reduced in size for web use on PS. It shows the shoot time and the last modification time. It also showed the PPI for each. Are there some modifications or editing programs where changes don't show up?</p>

<blockquote> <p>"you’ve met my relations?"</p> </blockquote> <p>We may be distant relatives. I think they are the same as mine.</p>

<blockquote> <p>"if I take her to court she can say that she sent them. In my contract, it said that I would receive "high resolution" photos.</p> </blockquote> <p>So what? A judge is unlikely to buy that and, even if they did, the probable response will be to order that they be sent again (at a nominal cost) or there will be a substantial refund forthcoming.</p> <blockquote> <p>"she said was if your friend wants to sue me tell her go ahead I'm ready"</p> </blockquote> <p>So what again? Most likely the photographer will yield when push comes actually comes to shove. While there should be no rush to sue in general, this instance says small claims court all over it. If it turns out there are no hi res images (I'm guessing this is so and that the camera settings were wrong), then ask for a partial refund. You're getting nowhere. Don't waste any more time and effort trying to reason with them. Bring it on or let it go.</p>

<blockquote> <p>"I had some advantage that the people involved were relatives, so I had knowledge of them and previous interactions of theirs with other family members." & "my overriding premise that I had decided before the meeting, was to achieve the outcome to shed everything; to leave no loose ends and to walk away clean."</p> </blockquote> <p>Translated in to American style slang. "<em>They are out of their minds. I knew that dealing with them any further would have been be a total nightmare so I had to make a deal to completely cut them loose.</em>"</p> <blockquote> <p>"Allowing our own emotional involvement in a business issue, usually clouds clear business judgement and result in poor business choices being made."</p> </blockquote> <p>It also leads to extra paragraphs of explanations when asking for advice on internet forums. Although that tends to reveal that indulgence in emotional reactions is an underlying problem to that which is stated.</p>

<blockquote> <p>finally, I get down to my questions: Has anyone dealt with something like this, and if so, how did you handle it? Since we didn't have a contract but everything is written down in pieces that <em><strong>we can still prove our agreement</strong></em>, are we obligated to do anything else?</p> </blockquote> <p>No. </p>

<blockquote> <p>"I had felt horrible for being the one to make her feel that way."</p> </blockquote> <p>You aren't the one that 'made' her feel that way. At least not in the way you think.</p> <blockquote> <p>"To tell me that I disrespect myself for empathizing and showing remorse for lost images and doing as much as I can to smooth things over is absurd."</p> </blockquote> <p>I never said showing empathy and remorse, itself, amounts to a lack of self respect. Indeed, you should do that. It would be fair to say that going overboard way way beyond what is needed to make things up and offering oneself up for abuse is goes to self respect. Also, to the bottom line.<br /><br /></p> <blockquote> <p>"They ultimately respected my reasoning because they knew that I had zero malicious intent"</p> </blockquote> <p>There is no indication, whatsoever, that the clients would conclude that in any event.<br /><br /></p> <blockquote> <p>"that is all I have to do to prevent them from going bat-shit crazy and slandering my name publicly is worth it in the end."</p> </blockquote> <p>They weren't going to. Your hyper emotionalism about failing them and overboard concessions, at the outset, is what made it appear that the error was of extremely greater magnitude that it actually was. That is the whole point being made which you are completely not getting.</p> <blockquote> <p>"All I have to do is pull a few all-nighters and re-edit without grain and be out a couple thousand and all of this drama will have started and ended in one week. That sounds a lot better than getting lawyers involved and dealing with this months down the road."</p> </blockquote> <p><br />YOU caused the drama. Well beyond that which would ordinarily occur. Now even more drama is being introduced fretting about lawyers and court cases. You have, so we are told, a liquidated damages clause in your contract. A mere minority fraction of images were lost. There is no way this would ever go to court and any lawyer seeing the contract will tell their client that the max they can legally obtain is liquidated damages and that is generally consistent with a TOTAL loss of images.<br /><br />I realize I'm giving some tough love here. Indeed, I am on your side. I admire your dedication and genuine care and commitment about what you provide to people from their important life occasions. I would hire you myself. Sometimes you need to suck up to your customers and let them be right, even when they are wrong. What I am saying here is that there should be some reasonable limits and, more to the point, not self fulfilling profecies of doom presented to clients. <strong>They may and will take advantage of you because you presented a situation as something more horrible than it actually is.</strong> Taking advantage need not be malicious. Indeed, they may think it is just. That is because you presented it as such. THAT leads to the very thing you are trying to avoid. Harm to your reputation and unnecessary losses. In other words, you harm you own reputation by throwing yourself under the bus when there is no bus or just a slow moving one where you get out of its way.</p>

<blockquote> <p>"I send them to my boss, and he reassures me; "those look fantastic, great job!"<br /><br /></p> </blockquote> <p>Good. According to the boss, you performed your work satisfactorily.</p> <blockquote> <p>"I get an email forward from him today from the lady that ordered the photographer (wasn't the bride or her mother). She was so disappointed... ...The client wants me to "fix" the photos. So what do I do now?"</p> </blockquote> <p>Nothing. Except to ask the boss why they forwarded the e-mail. Then you will know whether it is worthwhile to accept further engagements from them if any are available. It could have just been sent merely for reference or go as far as changing their expectations after the fact and demanding that you pull off the impossible after concluding the work was done properly. Whatever the reason, there really isn't much you can or should do. Continue to hone your skills for these settings if you plan to do further work in this area in general. You should do this last part no matter how good or bad the images are.</p>

<blockquote> <p>We met up. I immediately started apologizing and I ended up crying. It was a big crying fest. They even expressed that they were sorry for coming off mean the day before, which I told them to never feel bad about how they feel about this at all. I took all of the heat that they were giving me and more, even when at some points I felt that they were in the wrong. They said that they had appreciated my attitude today and wished that I had the same one yesterday. Which I did.</p> </blockquote> <p>This is ridiculous. It actually seems to be a psychological issue of some kind because, from a business standpoint, it makes no sense. Sorry to be so blunt but you really need to get it together. See my earlier post. Luckily, they apparently didn't demand more concessions especially considering they piled on more abuse as you surrendered the last vestiges of what little dignity you had left. <br /><br />Of course the problem is serious. Of course you should be apologetic and, of course, there should be an effort to make the clients whole. But now they are not only getting a free wedding shoot, free weeks worth of editing, free extra week of editing to change the grain that was consistent with the samples, free images, a free portrait shoot, free expensive canvas warps all way way above what they agreed to as damages in the contract. I'm not sure who respects you less. The clients or yourself.</p> <p>One last point, and I was hesitant to make it before but it is probably for the best. Learn the proper use the of the word literally. It makes the meaning of the second to last sentence in the original post, well, uncomfortable...<br /><br />http://theoatmeal.com/comics/literally</p>

<p>http://www.saugus.net/Photos/scanning.shtml</p> <p>http://www.yelp.com/biz/dijifi-brooklyn</p>

<p>They sense your panic which presents the situation much worse than it actually is and that you are exposing your throat to them as an animal would to show subservience. Indeed, you are offering up MORE than a total refund. Now they are going full throttle on you. You're stuck, business sense wise, giving them what you said but it is time to stop giving more concessions and the panic mode. At least in appearance. Be friendly and helpful now. Don't get walked over.</p> <blockquote> <p>"What do I do if they try to take me to court?"<br /><br /></p> </blockquote> <p>Win. Since you are already making them more than whole after you substantially performed in the legal sense.</p>

<p>I agree with the advice to avoid trying to finesse the use of the video. If the gig is important, just skip the video use and the of risk the client being weary about having to check on it ect. I'm not sure a sample video editing out key people is going to be ideal anyway.</p>

<p>I think finding suitable help IS a big issue here. Worthy candidates just wish to be paid something while performing work that may have the additional benefit of helping them learn. Making financial investments for such sporadic work is usually undesired. If they are independent, then that issue will still exist and be a problem for recruitment. Indeed, it is a factor (if you will) in deciding if employment may be most suitable even if not required.</p>

<blockquote> <p>"this wouldn't be full-time work obviously, just one day a week or every other week so employeeship doesn't make sense."</p> </blockquote> <p><br />Considering it is common knowledge that there are so many millions of part time employees in the U.S., it is curious why this would be deemed so. In any event, I'll assume the google links have been reviewed. That it revealed that people working for you cannot be labeled and treated as contractors merely because one doesn't want to or can't afford to "pay for workers comp, insurance, payroll etc". If that were the case, almost every employer would be doing it long long ago.<br /><br />Rather, the distinction is determined by a reviewing a continuum of factors that show the amount of control the hiring party exercises over the contractor. The factors are weighed to see if the balance tilts towards control or not. Relative to the quote above, the question is less likely to be about frequency of work but whether the person is required to work at the times told and also are they free to decline to take other work or do other things. That is just one factor among many and not the be all and end all and circumstances may affect the weight given to the control exercised if any. It illustrates, however, the kind of issues that are involved.</p> <p>A second shooter may work fairly frequently, have to show up at the time and place told when accepting a shoot, and do things in a certain way but, other factors often negate those controls. Using their own equipment, freedom to decline jobs, artistic discretion, wardrobe choices and all sorts of other things. Its important to know because, absent enforceable agreements, the second may claim copyright to images they shoot even if they turn them over for use consistent with the first's contract with the client. An "assistant" shlepping stuff around and having to follow your orders all the time is less likely to qualify as independent.<br /> <br /> As to the question of whether "a DBA and also to have liability insurance" is required, I'm not going to review New York law but will note those are prudent measures. They might even be among the factors of control considered.</p>

<blockquote> <p>"Should I report the image to Facebook as a violation?"</p> </blockquote> <p>Although your description indicates the website, itself, is posting the image, the story appears to be that one of its users are. Look up the Digital Millennium Copyright Act (DMCA) takedown notice procedure for infringing use of images. Also consult the facebook link below for more specific detail on how to use that for their site</p> <p>https://www.facebook.com/help/400287850027717<br /><br /><br /></p>