Photographer nightmare

I had pictures taken with the intent of giving them as a gift. I paid the photographer in full, and in return received 2 DVD's full of the images. I was told that copies of the images were also on a main server. When I got the pictures I was not comfortable with how they turned out and they caused a lot of issues. I emailed the photographer to ask him NOT to use images of my on a website. I also asked what I could do to get the pictures off of the server and be assured that they would never resurface. The photographer was not very receptive to this idea. I was told that I was given a reduced rate in exchange for the images being used in a portfolio/ on a website showcasing different styles. I received an email last night stating that in order to gain all rights to my pictures and have this done and over, I would have to replace a piece of equipment that broke during my shoot- through no fault of mine. Is this fair?

Fair? maybe. Legal? no. The photographer is blackmailing you.

Was there a contract involved with the shoot? The contract should stipulate who owns the rights to the images. The wording within the contract would determine your outcome.

The photographer's blackmail offer could also be viewed as an offer to sell the images back to you. We just don't know if he owns them or not without having knowledge of what terms you and he entered.

I was told that I was given a reduced rate in exchange for the images being used in a portfolio

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Were you made aware of this PRIOR to the shoot?

We didn't have a contract. And they said i was getting "the old rate" no mention was made of why that was.

on a website showcasing

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I'm not an attorney, yet it is my understanding that your pictures may NOT be used by him to earn income unless authorized by you. He may own the negatives or digital files, but he CANNOT use them to produce income for him.

It sounds like the website that the pictures are on is showcasing his business. I believe this would be illegal without your authorization.

Perhaps another member will confirm this.

Thus you can either pay for the equipment and get all the pictures returned, or you can keep a close watch on him. If your pictures are ever used in conjuction with him earning a buck, you can then consult an attorney to sue him.

This is a difficult question. Here's your answer. The work you commissioned, in theory from my logical perspective, should be yours and a "work made for hire" - but, let's look at what copyright law says.

The full document of Circular 9 from the US Copyright Office is abridged as follows:

Section 101 of the copyright law defines a "work made for hire" as:
1. a work prepared by an employee within the scope of his or her employment; or
2. a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a "supplementary work" is a work prepared for a publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes; and an "instructional text" is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.

You see two different ways you can own the proceeds of the work above. Your best bet would be to take the position that you were the photographer's employer, which depends upon the circumstances and may not qualify here. You did not provide the equipment but you probably did require a time, place, have control over the direction, etc. The determining factor is whether, under agency law, the photographer's actions would have made you liable if something occurred. I'm not 100% sure.

The challenge is that you may easily fall along the path of the photographer being independent contractor. As such, you need to satisfy three requirements and at least one of the three (written requirement) may not suffice if you follow this path.

If you want to be sure, find out how much this guys is trying to get you for. Get a written agreement signed in exchange for some extra money, which might not be that much. Decide whether it's worth going to small claims court later to recover but at least you own your very important photographs, without question.

What I've written to you is just a guess and thought, not legal advice by an attorney who has fully reviewed all the facts and details of your case and any agreements, written or otherwise, that may have taken place.

Being a commercial photographer, with a decent understanding of copyright, releases, and work for hire, since we negotiate contacts on a weekly basis, here are my opinions;

Rarely does the bride/groom (or contracting party) receive ownership from the photographer unless stated so in an agreement/contract. Absent of a contract to state otherwise, the ownership of the copyright belongs to the creator, that being the photographer in this instance.

Further, photographer/client relationships are rarely ever seen as employer/employee relationships. Work for hire agreements need to be in writing, and/or the employer/employee relationships need to meet several specific categories. Its doubtful that a bride/groom hiring a photographer would fall under those;

There are only two situations in which a work for hire can exist. They are: (1) a work created by an "independent contractor," and a (2) "work prepared by an employee" within the scope of her employment.

Works Created by Independent Contractors

For a work created by an independent contractor (or freelancer) to qualify as a work for hire, three specific conditions found in the Copyright Act must be meet:

1. the work must be "specially ordered" or "commissioned." What this means is the independent contractor is paid to create something new (as opposed to being paid for an already existing piece of work); and

2. prior to commencement of work, both parties must expressly agree in a signed document that the work shall be considered a work made for hire; and

3. the work must fall within at least one of the following nine narrow statutory categories of commissioned works list in the Copyright Act:

(1) a translation, (2) a contribution to a motion picture or other audiovisual work, (3) a contribution to a collective work (such as a magazine), (4) as an atlas, (5) as a compilation, (6) as an instructional text, (7) as a test, (8) as answer material for a test, (9) or a supplementary work (i.e., "a secondary adjunct to a work by another author" such as a foreword, afterword, chart, illustration, editorial note, bibliography, appendix and index).

If the bride/groom decided to state the photographer was an employee, they could expose themselves to other issues, such as not withholding appropriate taxes, state and federal filing requirements, labor law violations, etc, which makes this avenue a bumpy one.

One point that could be a good arguing point. Photographers usually have a clause in their contracts that allow them to use the images from the wedding for their self promotional use, ie website, brochures, advertising, etc. If you haven't signed anything, you haven't given them permission to use your likeness for commercial use.

In my opinion, your best course of action would be to work out a deal that is acceptable to both of you. Getting attorneys involved with only be expensive for both sides, and neither party will walk away from the experience with anything other than bad feelings. If you can use the lack of a release to help counter his arguments, perhaps you can both find some middle point to settle on.

"In my opinion, your best course of action would be to work out a deal that is acceptable to both of you. Getting attorneys involved with only be expensive for both sides, and neither party will walk away from the experience with anything other than bad feelings. If you can use the lack of a release to help counter his arguments, perhaps you can both find some middle point to settle on."

RIGHT ON!