Did a shoot and now they wont pay up! What now?

[matrix311]

I'm new to photography and the business side of it. Last month I did a shoot for a new company starting up here in town. The shoot was with models and the models were holding their Handbag product which they plan on selling. My photos are all over their website and as a form of payment he was going to provide me with NASCAR tickets as the client worked for CBS RADIO. He informed me he was laid off from his work and will not be able to provide me with the NASCAR tickets as agreed upon. He will not pay money and now has been lacking a response to me.

What options do I have at this point if a resolution for compensation does not come about? I have his web masters contact information. Would I go to the webmaster to have him remove the pictures from the site?

Any advice is appreciated as far as how i can move forward if payment isn't given. I should have waited to receive the tickets prior to sending him the photos and that is a mistake on my end. Lesson learned.

[Markitos]

I'd have the photos removed from the site for sure.

In the future, you'd be wise to get a deposit/payment in full before the shoot. You'd also be wise to have a good contract so that you would have legal recourse should you choose to pursue the issue in court.

[Tigershark]

You can try contacting the website or contact the company and send them an invoice, if they don't respond just do a whois on their domain and send the hosting company a DMCA notice and make sure you provide the hosting company a reference along with the letter, it will definately work I have had to do this before but keep in mind the host will shut down the website until they remove the images. Hosting companies take copyright infringement very seriously and will shut the site down in generally less than 24 hrs provided you write the letter correctly. if you are looking to get paid then it is best to contact the company and use the DMCA as a second resort. You do not have to have them registered in order to do this, it is by far the easiest solution if a financial one can not be reached

http://en.wikipedia.org/wiki/Digital_Millennium_Copyright_Act

[matrix311]

Great thank you for the information thus far. I will give my client another week and if no resolution comes about I will go to the webmaster directly and have the photos removed.

[focus.pocus]

you're screwed... very little you can do... the hosting co, won't do anything unless it's from an attorney in 9 out of 10 cases... and then you have to to think is it worth it to get an attorney... apparently if all you were getting is Nascar tickets then I'd say no... like someone said above get a deposit from now on or payment in full in advance...

[Shootfilm]

Its not a car you cant repo the photo's. They owe you money for breach of contract. This is not a copyrights issue. I dont know what the value of NASCAR tickets is but it sounds like something easily handled in small claims.

SF

[matrix311]

Its not a car you cant repo the photo's. They owe you money for breach of contract. This is not a copyrights issue. I dont know what the value of NASCAR tickets is but it sounds like something easily handled in small claims.

SF

The value of the tickets were about $150 each. I'm not interested in getting an attorney or taking this to small claims court. Just wondering what kind of firepower such as the DCA I can use.

[RDKirk]

you're screwed... very little you can do... the hosting co, won't do anything unless it's from an attorney in 9 out of 10 cases.

Yes, they will. From the point of view of the hosting company, this is a commercial copyright violation situation that has the possibility of escalating very quickly into an expensive propostion with them as the deep-pockets defendent--that happens the moment a lawyer gets involved. Having to get their lawyer to respond to another lawyer is more expense than is necessary; they can easily short-circuit that by shutting down the site, and they will.

First, though, get your copyright registered. You can do this online through copyright.gov with a mass registration (as "published" images) for $45. By telling them your copyright is registered ("registration" counts the moment you've made the upload to copyright.gov), they will know that your next move will be to have your lawyer contact their lawyer.

[Shootfilm]

The value of the tickets were about $150 each. I'm not interested in getting an attorney or taking this to small claims court. Just wondering what kind of firepower such as the DCA I can use.

Do you mean Department of Consumer Affairs. If so its not a consumer protection issue, its a vendor relationship. This is why we have small claims. If you screw with their web host you may find yourself on the wrong side of the fence.

SF

[Alleh]

Just let him know that he does not have permission to use the images without making payment and that they need to be removed within 1 week. Take screen shots of all the images being used on the website. Register your copyright (Should do this anyway to get used to it as a normal operating procedure) If he does not remove them send an email to the web host to inform them of the copyright infringement and cc him on the email. He should get the point by then and he or the web host will hopefully remove the images if not just gather your stuff together and file a small claims. If he sells any bags he is technically making money off your images so deal with it accordingly at least for the learning experience. It's easy.

Imagine what it's like with a client on a $25k job and $10k in expenses or when a large company just hijacks it on accident because some intern didn't know how the rules worked.

[Zansho]

Wait wait.. do you have a CONTRACT in place with your client? Did you have something in writing saying the client will reimburse you with NASCAR tickets?

If I've said it once, I've said it a million times. Get everything in writing when you're dealing with a business. It's not their job to do right by you - you need to take care of yourself and make sure you are compensated for your work, on your terms that you can agree to.

[Shootfilm]

Just let him know that he does not have permission to use the images without making payment and that they need to be removed within 1 week. Take screen shots of all the images being used on the website. Register your copyright (Should do this anyway to get used to it as a normal operating procedure) If he does not remove them send an email to the web host to inform them of the copyright infringement and cc him on the email. He should get the point by then and he or the web host will hopefully remove the images if not just gather your stuff together and file a small claims. If he sells any bags he is technically making money off your images so deal with it accordingly at least for the learning experience. It's easy.

Imagine what it's like with a client on a $25k job and $10k in expenses or when a large company just hijacks it on accident because some intern didn't know how the rules worked.

They are no longer his images. He sold them irregardless of payment, the guy did not take the images without permission.

SF

[tim]

You automatically have copyright of the images you take. If someone violates your copyright you can have their website taken down with a DCMA notice, I think. You'd be better off politely asking the company for payment or for the images to be taken down. Politely, but firmly. No threats. Make sure it's physical mail, to someone high up, not an email or phone call - they're not taken as seriously.

[matrix311]

I have an email chain of the contract for work. Nothing physical in writing or signed. Thank you for the advice.

[RDKirk]

I have an email chain of the contract for work. Nothing physical in writing or signed. Thank you for the advice.

Email works, lacking anything else. The fact of your copyright exists--they have to prove you gave them license to use it or tranferred copyright to them.

[P51Mstg]

I was a lawyer for a long time before retiring...... SHOOTFILM is right across the board. Its really a payment issue, not a copyright issue, small claims court is about all you can do with it.

If you do get them to take the pics down, all they are going to do is to get some other photog to take pics and not pay them either.

Now you could get the shots taken down if you have a written contract that SAID something to the effect of "you can't use the pics until I get paid"...... Or better yet, you don't turn the pics over until money (or NASCAR TICKETS) changes hands......

Best of luck

Mark H

[RDKirk]

I was a lawyer for a long time before retiring...... SHOOTFILM is right across the board. Its really a payment issue, not a copyright issue, small claims court is about all you can do with it.

If you do get them to take the pics down, all they are going to do is to get some other photog to take pics and not pay them either.

Now you could get the shots taken down if you have a written contract that SAID something to the effect of "you can't use the pics until I get paid"...... Or better yet, you don't turn the pics over until money (or NASCAR TICKETS) changes hands......

Best of luck

Mark H

Okay. So let's say I rent a car to a guy for an agreed sum per month. I let him drive away with the car, but he never pays the rent. Are you saying I can't repossess my car?

Remember, this is the license of intellectual property--not a "sale" of anything.

[P51Mstg]

Go back and read your original post... There is NOTHING in there about licensing......

It boils down to you shot the pictures, you didn't get paid. You need to go collect....

I would use CAUTION about trying to "repo the pictures", this is a commercial transaction, it should be covered by the UCC, it should have all been in writing and signed. If you repo the pictures, or somehow disturb their website or sales, you may well open yourself up for a lot more damages than 2 NASCAR tickets. Since now you are going outside the scope of the law and interfering with his business. Commercial transactions ASSUME that the individuals involved are knowledgable about what they are doing.........

Renting or leasing your car is a consumer transaction, and is a different situation. There you can go and repo your car (assuming you comply with your states consumer protection laws).

Always use caution when you resort to "self help" as its legally known (the same as taking a baseball bat to your customer), you may get some real surprises.

You may want to shoot some photos for a lawyer in exchange for him writing you a nice commercial contract valid in your state.... BTW if you think you can find the same thing on line or do it yourself, you would be admitting that the $300 point and shoot guy can do the same quality wedding pics as the 30 year experienced $10,000 pro....

I do wish you the best, but at this point, other than simply suing him (collecting the money he owes you and attorney fees and costs) you are probably out of luck. I can say you need to watch out, when it comes time for him to pay, he may well (and should be able to do it too) pay you with 2 tickets for a NASCAR race that was run 6 months ago (which seems to be the deal here).

I wish you the best

Mark H
PS: It may look bad, but I'm at the end of an 18 hour day here...

[NaKiD EyE]

sorry about your situation. I avoid these by collecting payment before I release my images. I have gone as far as not giving my friend her images until paid. I drove an hour to get the location, shot for 3 hours, edited for about 10... I was not gonna get stiffed.

[Shootfilm]

Okay. So let's say I rent a car to a guy for an agreed sum per month. I let him drive away with the car, but he never pays the rent. Are you saying I can't repossess my car?

Remember, this is the license of intellectual property--not a "sale" of anything.

The car has a title and its your property so yes you can go get it. You could not report it stolen.

SF

[Shootfilm]

Email works, lacking anything else. The fact of your copyright exists--they have to prove you gave them license to use it or tranferred copyright to them.

No you have to bring the proof that they were stolen. The burdon is on the acting party. If he gave them origonals on a disk or even via an email that is all they need.
This is nothing more than simple breach of contract no matter how its painted. It could be turned ito much more but the op doesnt even want to file a small claims case.

SF

[gravy graffix]

copyright is the TITLE.... but he needs to register it at the "DMV"...

[Shootfilm]

copyright is the TITLE.... but he needs to register it at the "DMV"...

NO its not. You cannot chattel or repo an image for nonpayment of a contract unless the contract states otherwise.

SF

[RDKirk]

NO its not. You cannot chattel or repo an image for nonpayment of a contract unless the contract states otherwise.

Okay. So, let's say we do have a contract stating that for $1000, the client is licensing my image for website use for one year. As usual business practice, I deliver the images and send him an invoice to be paid within 30 days.

He never pays. So the only option is either to let him go on using the images without payment or to spend several thousand more dollars to take him to court--unless the contract specifically states a particular action in case of nonpayment?

[Shootfilm]

Okay. So, let's say we do have a contract stating that for $1000, the client is licensing my image for website use for one year. As usual business practice, I deliver the images and send him an invoice to be paid within 30 days.

He never pays. So the only option is either to let him go on using the images without payment or to spend several thousand more dollars to take him to court--unless the contract specifically states a particular action in case of nonpayment?

You would have a civil action not copyright so yes he could use the images for the period stated in the contract. I dont know why you would spend thousands to take him to court. It doesnt cost near that to handle a simple civil action. You have small claims at your disposal, here I think its only $30, you recover the $30 in the action.
Even if you paid a lawyer almost all states will require binding arbitration under a certain dollar amount, here its 50K. You then recover the few hundred in legal fees at the same time.

SF

[cory1848]

I read about issues on the boards before stating that if no payment was transfered, then copyright remained with the photog, UNLESS copyright was specifically signed away. Also read that in order for a contract to be a contract, something had to be exchanged. I am no lawyer but it was a valid argument.

So in this instance, since no payment was made, no contract exist. Since no contract exist then copyright defaults to the photog. If copyright defaults to the photog, then XYZ company is in copyright violation.

Why wouldn't this apply in this case?

[Shootfilm]

I read about issues on the boards before stating that if no payment was transfered, then copyright remained with the photog, UNLESS copyright was specifically signed away. Also read that in order for a contract to be a contract, something had to be exchanged. I am no lawyer but it was a valid argument.

So in this instance, since no payment was made, no contract exist. Since no contract exist then copyright defaults to the photog. If copyright defaults to the photog, then XYZ company is in copyright violation.

Why wouldn't this apply in this case?

Because your off on the contract part. The consideration would be the photos on one side and the stipulated terms on the other. It doesnt have to be a physical excahnge. Verbal contracts or in this case an email trail is the contract.

SF

[cdifoto]

Because your off on the contract part. The consideration would be the photos on one side and the stipulated terms on the other. It doesnt have to be a physical excahnge. Verbal contracts or in this case an email trail is the contract.

SF
And the email trail says "Nascar Tickets for Photos".

No Nascar Tickets = No Photos.

Oops I gave you the photos because the Nascar Tickets were to follow. Nascar Tickets DID NOT follow, so I'm taking my pictures back.

If the "client" is not responding to emails, calls, and letters, shut his website down (or at least have your pics removed). He'll talk to you.

[cory1848]

Because your off on the contract part. The consideration would be the photos on one side and the stipulated terms on the other. It doesnt have to be a physical excahnge. Verbal contracts or in this case an email trail is the contract.

SF

But you cannot give away copyright. That has to be specifically sign off on in written form. Not sure if the OP did that or not, however if he did not sign it away, then he is still the copyright holder.

[Shootfilm]

But you cannot give away copyright. That has to be specifically sign off on in written form. Not sure if the OP did that or not, however if he did not sign it away, then he is still the copyright holder.

He cannot transfer a filed copyright by default he can however give permission to use the photos. This is what he did and can no longer claim stolen photos.

SF

[Shootfilm]

Oops I gave you the photos because the Nascar Tickets were to follow.

If you agreed to wait on the tickets and did not conduct it as a typical retail sale then you agreed to terms. Moral issues aside this is how it works. If you shut down his website or have the photo's removed he can file a claim against you.

If you went to a store and said to the clerk Ill pay you for the beer next thursday. Clerk says ok but you never pay. He cant go to your house and take the beer. He also cant call the cops and have you arrested for theft. He can take you to small claims.

SF

[cory1848]

He cannot transfer a filed copyright by default he can however give permission to use the photos. This is what he did and can no longer claim stolen photos.

SF

Permission in exchange for payment. It would be my guess that this guy has no intention of ever paying so I would think any small claims court would agree that the buyer needs to pay up or remove photos.

The OP could also state the he gave the photos to the buyer for review purposes, not to go live with them. I would really like to see an IP attorneys take on this case. Any out there?

[Shootfilm]

Permission in exchange for payment. It would be my guess that this guy has no intention of ever paying so I would think any small claims court would agree that the buyer needs to pay up or remove photos.

The OP could also state the he gave the photos to the buyer for review purposes, not to go live with them. I would really like to see an IP attorneys take on this case. Any out there?

Its not an IP issue. First as with any legal question you have to look at the basics and in this case its the contract. You cant just jump into federal court if its a matter that is easily settled in a lower court. Its not a clear IP issue but it is a clear civil issue. If you jumped straight to federal the other side would just argue its contract law not ip. If the argument was won then you will have lost all claims. There is no going backwards. Second no small claims court in the US can tell someone to take down pictures. Only a federal court can make such a demand.

SF

[klynam]

Actually, there are two issues here, and one is entirely IP related (or more accurately a matter of copyright.)

First you have the question of a quid-pro-quo business transaction.


Party-A requested photographic services in exchange for compensation.
Party-B agreed to provide photographic services in exchange for compensation.
Party-B met the terms of the agreement.
Party-A defaulted on the agreement.
What happens with this can be debated...


The question of copyright infringement is entirely separate.


Party-B (the photographer) has full copyright to his images.
Party-A has absolutely no rights to reproduce the photos without the consent of Party-B.
Party-B did not grant consent by giving the photos to Party-A. He only met his obligation under the quid-pro-quo agreement above.
Yes - consent would have occurred had the quid-pro-quo transaction been completed by both parties - but it was not.
Copyright transfer and/or usage release did not occur.
Therefore, Party-B has every right to make cease and desist demands of Party-A, and/or the hosting company serving up the images, for copyright infringement.


Can Party-B force Party-A to return the images (or destroy digital replicants)? Will he ever succeed? Should he even try? Those are all matters for debate. The strict matter of copyright infringement is not.

Two issues, best kept separate...

[PMode]

This Ive had a little experience with. Quid pro quo does fall into play. But its up to the court to decide wether or not to void the contract. As of now its a lopsided contract meaning only one person benefitted. The parties dont void the contract the judge does.

[Shootfilm]

This Ive had a little experience with. Quid pro quo does fall into play. But its up to the court to decide wether or not to void the contract. As of now its a lopsided contract meaning only one person benefitted. The parties dont void the contract the judge does.

This is more accurate. If you wanted to be dirty. You file civil action not for the monetary amount but to have the contract voided. Once you done this you would turn around and file a copyright action.
Chance are better that when it goes to arbitration he will offer up the value. Once he offers the value you have to either take it or go to trial. If the trial determines that he only has to pay the value then you loose fees because you didnt accept the value.

SF

[klynam]

Agreed and agreed - strategically I would still bypass the contract deliberation and focus exclusively on the question of copyright infringement. Forget the money, the amounts are minuscule. The website host probably wont want any part of a copyright dispute, and that can be handled quicker and cheaper than any litigation. Push to get the images removed - and keep watch on the site to be sure they are not re-posted. Then keep shooting...life goes on...lesson learned...

[matrix311]

Thanks for the information again everyone. I am going to run with this and see where I end up.

[cory1848]

Interesting thread with some good discussion!

[freaking102]

Any advice is appreciated as far as how i can move forward if payment isn't given. I should have waited to receive the tickets prior to sending him the photos and that is a mistake on my end. Lesson learned.

You had a verbal contract, and you apparently lived up to your end of contract and provided pics.. They did not live up to their end on contract and make payment. The value is low, so you can sue in small claims court. There is no copyright infringement as your verbal contract was probably that you would give pics for their use w/o restriction, so is just a payment dispute, so don't know why people are talking about copyright w/o knowledge of verbal contract terms.

[PhotosGuy]

You had a verbal contract, I don't think so. He has an email trail?

Next time, include this just to get their attention: "Grant of Rights. Upon receipt of full payment, Photographer grants to the Client the following nonelectronic rights in the Work."

[klynam]

You had a verbal contract, and you apparently lived up to your end of contract and provided pics.. They did not live up to their end on contract and make payment. The value is low, so you can sue in small claims court. There is no copyright infringement as your verbal contract was probably that you would give pics for their use w/o restriction, so is just a payment dispute, so don't know why people are talking about copyright w/o knowledge of verbal contract terms.

Sorry - totally incorrect.

First of all the OP says there is an email chain. And if there wasn't, there is now due to this forum topic in which the OP admits to the existence of an agreement and indicates the terms.

Second, you make a huge presumption (bold by me above). You may be entirely right, but it's best to stick with facts in legal matters.

Third, a verbal agreement is nothing. There are no terms to enforce unless both parties agree there was a verbal and to the terms thereof, or there are witnesses.

Otherwise, I could just walk around taking pictures of people and saying "this guy promised to pay me $1000 for taking his picture. I took the pictures - see here they are - and now he's not paying me. We had a verbal agreement and he defaulted so make him pay me." Verbal agreement are only worth the paper they're written on.

Now back to the real matter - despite what you think - and where the photographer has real teeth: copyright infringement...

Possession may be 9/10ths of the law, but copyright law has come a LONG way in the last 20 years.

The ONLY way the recipient of the photos could refute a copyright infringement claim by the photographer is by showing expressed consent. Even an email that says, "here you go - hope they work out for you" would probably be sufficient - as long as there was no quid-pro-quo restatement.

If you can't provide virtually irrefutable evidence you have rights to use someone's images, then you have no rights to the images. If you use them anyway, you are violating copyright. That really is the end of the discussion. (okay - okay - there are exceptions where reportage use is involved, but that's not the question at hand.)