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Thread started 26 Dec 2011 (Monday) 17:07
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Threatened with lawsuit

 
PixelMagic
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Dec 27, 2011 03:35 |  #46

Many bridal magazines advise brides to ask for raw files so they ask even when they don't even know what a raw file actuallyis or how to view/process them. I would decline to give her any raw files even if she offers to pay for them.

BTW, court proceedings are conducted by phone all the time. If she actually files a lawsuit you will get a hearing date and you can usually set up a conference call since you don't reside in the county/state where the lawsuit is filed.


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RDKirk
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Dec 27, 2011 05:04 |  #47

Why do you even still possess the culls? If they weren't good enough to offer for sale, why are they still occupying hard drive space?


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chrisgerman1983
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Dec 27, 2011 07:21 |  #48

FlyingPhotog wrote in post #13603414 (external link)
No doubt I'm in the minority but... I'd like to see you stand by all of the above!

I'd contact the bride and ask her to clarify her point of view regarding the images she's seen and work to satisfy her for those images and those images only.

1001 "photographers" give the store away every day. There's no reason you have to stoop to that level.

As far as the communications go, IMO, the bride is as guilty for hiring you sight unseen as you are for pricing after the shoot. Huge Red Flags should have gone up in both camps.

I would agree with you 100% if there had been a contract... being that both parties made a mistake by not having one, I think that the OP should be the one to learn the lesson for the future and not the bride. If she is trying to run a legitimate business she will have plenty of times in the future to use the lesson she may learn. Even if the other photos are really that bad she really has nothing to lose by giving up the files. Unless a photographer is selling prints afterwards, I cant understand how it is such a huge deal to give away all the files.




  
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smacatl
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Dec 27, 2011 08:43 |  #49

What Phil & Jay said.

End of story -


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Kirill
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Dec 27, 2011 11:04 |  #50

There is a thing called Uniform Commercial Code, and it has "Statute of Frauds" that defines talks about contracts and and what needs to be in writing, and there are different provisions in each state, so that's were lawyers turn on the meeter.

You can do your own research or consult a lawyer. If you give her anything - make sure she signs a "release of claims"

http://www.west.net/~s​mith/frauds.htm (external link)




  
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tomj
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Dec 27, 2011 11:11 as a reply to  @ PixelMagic's post |  #51

"I have no doubt that given a reasonable person as a judge, I would win. I am not concerned about losing in court in the slightest."

This is a foolish assumption. That's why lawyers try to settle out of court.


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mckinleypics
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Dec 27, 2011 11:26 |  #52

Kirill wrote in post #13604905 (external link)
There is a thing called Uniform Commercial Code, and it has "Statute of Frauds" that defines talks about contracts and and what needs to be in writing, and there are different provisions in each state, so that's were lawyers turn on the meeter.

You can do your own research or consult a lawyer. If you give her anything - make sure she signs a "release of claims"

http://www.west.net/~s​mith/frauds.htm (external link)

The UCC is a guideline that states can use or not use so be careful if you want to play lawyer.


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LBaldwin
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Dec 27, 2011 11:32 |  #53

If there was no contract or verbal agreement prior to the shoot, then the judge cannot create one post shoot. If there was no agreement as to the culls, the raw files or any other products then the photographer has no need to worry, Let her file. She'll get her butt kicked in court.

Now the phtotographer needs a headslap for not creatimg and enforcing a written contract to start with. Obviously the photographer also is undercharging and or undercutting other shooters in the area.

Minimum wage won't cut it. Act like a pro enforce your rights and deal directly with the client.


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cacawcacaw
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Dec 27, 2011 13:30 |  #54

chrisgerman1983 wrote in post #13604076 (external link)
I would agree with you 100% if there had been a contract... being that both parties made a mistake by not having one, I think that the OP should be the one to learn the lesson for the future and not the bride. If she is trying to run a legitimate business she will have plenty of times in the future to use the lesson she may learn. Even if the other photos are really that bad she really has nothing to lose by giving up the files. Unless a photographer is selling prints afterwards, I cant understand how it is such a huge deal to give away all the files.

Exactly.

LBaldwin wrote in post #13605003 (external link)
If there was no contract or verbal agreement prior to the shoot, then the judge cannot create one post shoot. If there was no agreement as to the culls, the raw files or any other products then the photographer has no need to worry, Let her file. She'll get her butt kicked in court. ...

Do you also offer free medical and tax advice? Just joking, but I get the feeling that you don't really have that much experience in court. Particularly in small claims court where the judges can do almost anything they feel like and can rely upon standards such as reasonableness. For example, many judges could see it as reasonable that a customer, in the midst of wedding planning, might neglect to produce a written contract but that it's unreasonable for a professional, in the course of day-to-day business, to do so.


Replacing my Canon 7D, Tokina 12-24mm, Canon 17-55mm, Sigma 30mm f/1.4, 85mm f/1.4, and 150-500mm with a Panasonic Lumix FZ1000. I still have the 17-55 and the 30 available for sale.

  
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Gel
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Dec 27, 2011 13:37 |  #55

A contract doesn't have to exist depending on the complaint.

For example, if you agreed via email to supply services on a certain date for xxxx amount then you will be expected to fulfill this. This extends to any nuances mentioned in the emails also.


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S.Horton
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Dec 27, 2011 18:51 |  #56

It will cost her time and money to file. More than she paid you.

If you are confident that you have fulfilled your obligations, cease all communication, do not respond again at all, then let the chips fall where they may.

If she does file, just arrived prepared, calm, and collected. You'll be fine.

She will not be able to explain her damages when you have emails saying she is happy.

By the way, unless you have not fulfilled your contracted services, written or not, then she has no damages. If she has no damages and sues you anyway, that is actionable by you.

And if she posts incorrect misleading or slanderous posts online, and you can demonstrate that, you can bring a civil action for slander per se. That is very hard to defend against, as the only defense is that what she wrote is true. That action by you has no relationship to her filing anything.

So, if you are up for it, get copies of her slanders, if any, from her FB page. Or anywhere else. Then you sue first, with a better cause of action.

By the by I am not an attorney. I just happen to have unwanted experience and a brother who is a litigator, as in trial attorney.

It is nothing like TV. And just about everything you get here is wrong or imaginary.

Best tip: only hire a firm which has trial attorneys in the practice who know the judge you will be appearing before Otherwise, sure, you'll get an attorney, but s/he may know zero about court reality, which may waste your money. And just so you know, local magistrates are elected, which means not only do they not have to have litigation experience, they might not even be attorneys.

That cuts both ways. So, let her sue. Her odds are poor.


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LBaldwin
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Dec 27, 2011 20:21 |  #57

cacawcacaw wrote in post #13605505 (external link)
Exactly.

Do you also offer free medical and tax advice? Just joking, but I get the feeling that you don't really have that much experience in court. Particularly in small claims court where the judges can do almost anything they feel like and can rely upon standards such as reasonableness. For example, many judges could see it as reasonable that a customer, in the midst of wedding planning, might neglect to produce a written contract but that it's unreasonable for a professional, in the course of day-to-day business, to do so.

Actually I do offer free medical advice and taxes too! LOL.
In all honesty, I have experience in small claims on both ends. It's not fun. But if you do a little reasearch on small claims you'll find out I'm correct. Basic contract law cannot not be changed if it's applicable and fair. Yes small claims has loads more leeway than superior courts. Small claims is often run by lawyers on a rotating basis, acting as judges and it's a sort of bush league prior to higher judgeships. So they are learning too. I have two very good friends that are small claims judges and they argue all the time.

The customer is not the one who should supply the contract. That is the job of the photographer. The customer should expect the contract, they are going to be presented by the venue owner, some churches, the officient, the caterer, the dress maker, the tux shop, on and on. The photographer messed this up, plain and simple. The judge cannot create a contract where one did not exist to start with.

Now each city or town has it's own laws and rules of both contracts and small claims. So once the client files, it would be a great idea for the defendant to contact lawyers or legal aid in that area to better understand their rights. Many have time restrictions to reply in writing, require fees upfront, or even proof that you actually have a business.

I actually had a lawyer draw up my contracts for business use and then I had another lawyer check the work. Mainly due to the fact that I deal with a large amount of non-disclosure agreements, proprietary information agreements, and pre-patent product photography. Often my clients have parts or attachments that belong to other companies, so multiple contracts may apply. I just completed a shoot where the client had software on the monitors that had to be altered so that would not show-up in the images, in its usual GUI.

I wish the OP all the luck in the world, but I think it's going to get sticky.

EDIT: what Sam said!! Ditto!


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charro ­ callado
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Dec 27, 2011 20:26 |  #58

lol. this is how contracts casebooks start.




  
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cacawcacaw
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Dec 27, 2011 20:34 |  #59

LBaldwin wrote in post #13607292 (external link)
...The photographer messed this up, plain and simple. The judge cannot create a contract where one did not exist to start with. ...

There was a verbal contract, evidently with some email documentation. I think what you mean to say is that the judge can't go in retroactively and formalize the contract - the judge can only make determinations as to whether the existing verbal contract was valid and interpret the duties of each party.

What gets me is the willingness to go to battle. And for what gain? And, I think there is a good chance that the judge will see it the same way and perhaps become a little upset with the photographer who, for no good reason, wouldn't give the bride all of her pictures.


Replacing my Canon 7D, Tokina 12-24mm, Canon 17-55mm, Sigma 30mm f/1.4, 85mm f/1.4, and 150-500mm with a Panasonic Lumix FZ1000. I still have the 17-55 and the 30 available for sale.

  
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RDKirk
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Dec 27, 2011 20:58 as a reply to  @ cacawcacaw's post |  #60

What gets me is the willingness to go to battle. And for what gain? And, I think there is a good chance that the judge will see it the same way and perhaps become a little upset with the photographer who, for no good reason, wouldn't give the bride all of her pictures.

OTOH, lacking a contract stating otherwise good reason is easy enough to come by:

A. Such a low price reasonably did not include everything
B. What other pictures?


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