Contract Goofiness (Rant/Advice Needed)

[KmH]

The fact that they haven't signed the releases and that they haven't relinquished commercial control to you doesn't mean that you don't own the photographs... it just means that you can't use them for private gain until you're given permission to do so.

Think of it this way... picture this... you to take a photo of a random guy on the street. You like the photo, but he refuses to sign a release form. There's nothing illegal about you possessing that photo... you just can't really use it for anything. See what I'm saying?

Your clients absolutely don't own any rights to those photos... you do. It's just that, if they won't sign a release, you probably shouldn't use them for ANYTHING, even non-commercial display, just in case. Now, whether or not they'd like to buy prints relies on them giving you commercial control, in the form of a release, which allows you to legally sell their pet's likeness in those photos... to the client, on stock agencies, whatever.

Basically, the above is incorrect and/or incomplete information, except, "The fact that they haven't signed the releases and that they haven't relinquished commercial control to you doesn't mean that you don't own the photographs...' and "Your clients absolutely don't own any rights to those photos... you do."

I suggest you start here: Model Release Primer

And then get Dan's book: A Digital Photographer's Guide to Model Releases.

 

[JG_Coleman]

The fact that they haven't signed the releases and that they haven't relinquished commercial control to you doesn't mean that you don't own the photographs... it just means that you can't use them for private gain until you're given permission to do so.

Think of it this way... picture this... you to take a photo of a random guy on the street. You like the photo, but he refuses to sign a release form. There's nothing illegal about you possessing that photo... you just can't really use it for anything. See what I'm saying?

Your clients absolutely don't own any rights to those photos... you do. It's just that, if they won't sign a release, you probably shouldn't use them for ANYTHING, even non-commercial display, just in case. Now, whether or not they'd like to buy prints relies on them giving you commercial control, in the form of a release, which allows you to legally sell their pet's likeness in those photos... to the client, on stock agencies, whatever.

Basically, the above is incorrect and/or incomplete information, except, "The fact that they haven't signed the releases and that they haven't relinquished commercial control to you doesn't mean that you don't own the photographs...' and "Your clients absolutely don't own any rights to those photos... you do."

I suggest you start here: Model Release Primer

And then get Dan's book: A Digital Photographer's Guide to Model Releases.

I'm not claiming to be a scholar on photography law... I'm certainly not. But I would say that the above line of reasoning is what I would follow given the scenario of the OP. My line of reasoning wasn't really meant to be a primer on photographic law, either... it's a line of reasoning that can simply be used to try and cajole the OP's clients into signing the releases.

I'm sure that this way of looking at it wouldn't hold up in the court... but if the line of reasoning works and achieves the desired result for the OP, it won't have to.

The fact of the matter is that, under ordinary circumstances, the client would've been asked to sign the release form before the shoot even occurred. Being an incidental occurrence, I figure that a bit of sensible-sounding logic, while perhaps not textbook law, should nip this one in the bud for him.

Though I'm sure that reading up on the laws would be beneficial to him in the future, anyhow.

Out of curiosity, what have I got wrong? In general, I mean. Is it: "it's just that, if they won't sign a release, you probably shouldn't use them for ANYTHING, even non-commercial display, just in case."? I suppose that in terms of releases, since I don't usually need them or use them, I would err on the safe side and not use a single likeness of someone or someone's property unless I had a corresponding release. It just seems like a risk to me... but I suppose that I might perhaps be entitled to use the photos according to law? I've heard of "journalism" photography being free of this limitation, but it also just seems like a risk for an individual to take if they aren't sure... at least, a risk that I wouldn't take if it could possibly mean me having to pay a lawyer to save my a** in court.

 

[squee]

Well here is the email I sent out to them this morning....

I consulted with my lawyer about the contract issues we were having and
here is my final decision:

I cannot accept an altered contract from any client. All contracts that
have been written up for the company must apply to each and every client.
Normally, if a potential client chooses not to sign the contract, I refuse
to do business with them. Generally, by not agreeing with the contract the
client is telling me that they do not respect my work.

I apologize for showing up to our session unprepared. I irresponsibly did
not back up my files on my old computer which put me in an awful position.
However, I did not want to reschedule your session again because I value
your time as much as I expect my clients to value mine.

Legally, the photographs taken by me are my personal and creative property
and I retain all copyrights to them. The reason that this is the way it is
is because of the skilled trade that I offer and the time and effort I put
into producing and finishing each image. Any professional photographer
will tell you the same thing that I am telling you now, even retail
studios. Though I value your presence in the images, I put about 45
minutes to an hour into each image during post-processing. The images that
I create and finish in the interest of my clients should be considered
artwork created by myself regardless of who is in them.

I am attaching a final copy of the contract. If you still do not wish to
sign it, not only can I not sell you the images but I will also be forced
to digitally destroy them. The contracts that photographers require stand
to protect the photographer, therefor it would not be in my best interest
to continue to have the images in my possession.

Please know that I am not trying to be mean or vengeful and it is not in
my interest to lose a valuable client. I just cannot risk myself and my
business for even one client and I must protect my work with every single
client (regardless of their motives.) Unfortunately, despite the emotional
motive that the photography business revolves around it also must retain a
degree of professionalism.

You should also know that I am a fair human being. I do not currently
offer my images taken in the interest of clients to be sold to outsiders.
If the occasion were to arise that someone would want to buy a print where
a client was involved, I would gracefully offer a portion of the profit to
the client even though I am not legally bound to.

I am very sorry for the misunderstanding and I hope this email reaches you
in a good light. I value your business and hope that we may continue to
conduct it.

I hope you are having a wonderful time on your vacation. Please try to get
back to me with an answer by the end of the weekend.

They responded by apologizing and letting me know that they do respect my work. They said they will read over the contract/model release again and let me know but it shouldn't be a problem. He also said he'd send me information on what service he uses to back up his information online so I might utilize it. :mrgreen:

I hope this thread helps someone in the same predicament.

 

[kundalini]

Okay I think this is what I'm going to say (or something like it.)

"I consulted with my lawyers [little fib] and I cannot sell you the photographs without the original unaltered contracts signed. If you don't want to sign them, not only can I not sell them to you but I will have to digitally destroy them as well because I can't/won't use them for anything."

So if they don't want to be @$$es they'll sign them. I'll just make it look like they'd be hurting the both of us if they don't sign them. If they persist, I'll tell them exactly how much work I put into each image to explain why it makes sense that I should have total control over them.

I won't be mean. I'm not mean! I'm one of those passive people that gets walked all over an destroys items in my home when I'm alone. :hug::

If this is the way you wish to conduct business, under the premise of deceit, then your ethics are way off base. I predict failure and legal woes in the future. At the moment, you haven't spoken with an attorney and you do not know what your stance in the matter is. Until you have concrete facts, I would refrain from taking this tactic.


EDIT:
Opps, too late. Haven't read your letter yet, but I saw the opening salvo.

 

[squee]

If this is the way you wish to conduct business, under the premise of deceit, then your ethics are way off base. I predict failure and legal woes in the future.

My intention isn't too deceive. Though I'm talking about legalities here, I posted in a more casual way. I did intend on destroying the images if they didn't want to sign the contract so it would be hurting both of us. I guess saying 'making it look like' was poor word choice.

I did get in touch with my family lawyer, though. He's never been involved in a photography case but he set me up on the right path.

 

[KmH]

....Out of curiosity, what have I got wrong? In general, I mean....

Check out the link I provided, and I recommend having the book as part of your reference library.

 

[njw1224]

Hell, forget the contracts altogether. Sell them any prints they want at a hefty price and just don't use the images for anything else. Move on to the next client and have the paperwork in order. Also, I haven't seen the images, so I don't know if there are people in them or just the pets. But if they are strictly pet portraits, you don't need a release. Pet's owners have no rights to the likeness of the animal.

 

[DanEitreim]

First, you wouldn't be losing a client. Until they give you some money, they are just a prospect, not a client. If they are the type to bad mouth you for standing up for yourself, they are also the type to spread the word that you are a pushover and then ALL the people in the puppy class will expect the same. Your business could quickly turn into a nightmare. You have to be willing to walk away if necessary.

Second, they DID commission you. For a contract to be valid there has to be an exchange of value - not necessarily money. You gave them your time and experience, they gave you access to their home, their dogs and their time. You both exchanged value - you were commissioned.

On the photos of the dogs, leave them on your site, but put a big red stamp across them saying "Not For Sale"

When the customer calls to find out what is going on, explain that like any responsible business, you have to follow certain standards and requirements. a contract is one of them. If they are unwilling to deal with you fairly, the photos are not for sale.

Don't bother with an attorney. A bad one won't know what he's talking about and a good one will charge you a lot more than you could hope to make from the sale.

 

[TeslaCoil]

I was under the impression that any photo you take you own the copyrights for. And therefor have the legal rights to use for any form of self-promotion as a photographer. But since no one has mentioned this yet, I'm beginning to wonder if this is indeed true or not.

 

[Flash Harry]

I think that before you start talking contracts with anyone you need to consider a business plan, if I was commissioned to a location shoot to suit the client all costs incurred by me are passed to the client, this includes travel @ £ per mile, sitting fee @ £
day or half day rate etc etc, before any print costs/framing/matting etc etc.

How long do you reckon a business can operate on zero income before sales, and, if they don't wish to incur these extra shoot costs the solution is to visit your studio/home/shed/whatever and still pay the sitting fee. Its your time and expertise, so figure it all out first before you take on any client, and, if you want to sell your shots, they're yours, sell them to whoever you like, unless you sign their contract for exclusive rights. H

 

[KmH]

I was under the impression that any photo you take you own the copyrights for. And therefor have the legal rights to use for any form of self-promotion as a photographer. But since no one has mentioned this yet, I'm beginning to wonder if this is indeed true or not.

In the USA, as soon as your images are recored in a tangible medium, like a memory card, you own the copyright. Copyright is federal law.
Enforcement of your copyright would be adjudicated in US Federal Court. US Federal Court rules require your copyright be registered with the US Copyright Office, before they will accept any filings for legal action.

Image release law is state law, so in the US there are 50 slightly different versions.

Using images of people for self-promotion and self-publishing is not considered a commercial use, and does not require they be released: unless the people in them can be perceived as advocates or sponsors of your business which would then require a properly executed release.

How a photo was made also has a bearing. If you were paid to make the photo, was made in public under controlled conditions, or in private, signed releases from any people in the images are probably required.

Animals have no legal rights.

 

[Rosshole]

Animals have no legal rights.

Great Point!

 

[Overread]

I would change the name of the contract to a simple contract and remove the model release part of the title when dealing with animals. Typically unless you are dealing with registered trademark animals you won't be needing their pawprint on a model release. It also might confuse people once they start hearing the words "model release" as it a term often thrown around when money and photos are mentioned (ie it might send the wrong message as I think is the case you have right now)

Animals have no legal rights.

Great Point!

Wait does this mean you can - say - sue a dog for chewing your gearstick into nothing and they can't legally object?

 

[Rosshole]

Wait does this mean you can - say - sue a dog for chewing your gearstick into nothing and they can't legally object?

A pets owner is liable for damage that it causes to someones property.

Example; If your dog runs into the road and gets hit by a car, your homeowners insurance will pay for any repairs to the vehicle.

 

[Overread]

So if your own dog eats your own gearstick you have to sue yourself for damages?