LEGAL QUESTION, and yes, I know I am asking for legal advice on the internet.

[o hey tyler]

Here's the situation.

I was hired by a family of three (two adults, one toddler) to do family/lifestyle photoshoot of them. It turns out that the husbands brother, who is divorced, wants photos of himself and his child shot as well in the same session. That's totally fine with me, so I adjusted the price accordingly.

This morning, I received a text message from the ex-wife:

"Hello Tyler. I understand that you will be taking photos of [name redacted]. The point of this text is to let you know that I do not give you my permission for you to put pictures of [name redacted] on the Internet or use pictures of him in any way to represent your business. If you have any questions, feel free to ask me."

It is part of the agreement/contract with the father that I retain copyrights to the images for web usage and as part of my portfolio. They share joint custody of the child, and she is not involved with the shoot or paying for it in any way. She has not signed the agreement, but the husband has as he's the only one involved or paying for the shoot.

Does she have any leg to stand on if I tell her "Sorry, Ma'am, but I retain the copyrights and usage rights for social media or portfolio usage." I've put the shoot on hold due to the weather, and partly because of this reason.

I would like nothing more than to be able to display the images on social media, or my portfolio, because frankly I hate his ex wife (past history with her).

Any help or experience would be appreciated. Thank you all!

 

[JAC526]

If you are really concerned about litigation I strongly advise you sitting down with an attorney.

Is the ex-wife concerned about using pictures of the child or of her ex-husband? I'm assuming the child? If she has custody of the child I believe that her word may carry some weight. If the ex-husband has custody maybe not so much.

 

[fjrabon]

joint custody is tricky. Mostly because in family court, the judges just do whatever the heck the judges want to do. Since the individual in question is a minor, and she has joint custody, she does have a leg to stand on. A pretty decently strong leg. Likely the father can't completely release the child's rights by himself, ESPECIALLY if the mother has apprised you of her desires to not have the child's photographs released. You would have probably been okay if she had only apprised you of her desire to not release the minor's rights until after the perfection of the terms of the contract. But the fact that she indicated this desire prior to the perfection of the terms is problematic.

Likely your options are comply or refuse the shoot.

Or risk having her sue you on behalf of the child, as is her right by having joint custody.

 

[tirediron]

Walk away! You do NOT want to be part of this; it can go nowhere good.

Even if the ex-wife doesn't have any legal right to do this, there's HUGE potential for badness. I'm guessing that there are so many unknowns in the equation that even a lawyer probably could not give you a definite yes/no answer.

 

[MLeeK]

Walk away! You do NOT want to be part of this; it can go nowhere good.

Even if the ex-wife doesn't have any legal right to do this, there's HUGE potential for badness. I'm guessing that there are so many unknowns in the equation that even a lawyer probably could not give you a definite yes/no answer.

I am with tirediron on this one. Let the father know that you would prefer to decline this shoot over possible legal issues with the ex.
OR... explain that you were contacted by Betty ***** and in light of the possible legal issues you have to decline the session. The original session was priced according to you being able to use the family portraits. Due to the fact that that is not possible at this point a full priced session would be $xxx.

It doesn't matter what legal leg she does or doesn't have to stand on, she is going to make the ex's life hell and in doing so is going to make yours hell no matter what. There is a premium fee for anyone dealing with that crap.

I'd also send Betty B!tch back a note saying that you have been contracted by Joe Blow and due to that you decline to discuss the contract with her. She and her attorney can contact and deal with Joe as their divorce and custody is not your concern.

 

[o hey tyler]

Here is what I am leaning towards...

I am strongly considering doing the shoot of both of them (more $$$ that way). Not posting photos of the said child in question on the internet, but also working into my usage rights that the ex-wife will have no printing rights, or access to any of the images by her or her family members.

Does that sound like a good plan?

 

[JAC526]

I would put in the contract that you will not use the child's photographs in anyway. Have it in writing because if you go forward with the shoot and she decides to sue you this may help CYA.

I mean I don't think she can prevent you from actually doing the shoot legally....but she may be able to get you on what you do with the images....I am just kind of guessing at this though as I am not an attorney.

 

[fjrabon]

Here is what I am leaning towards...

I am strongly considering doing the shoot of both of them (more $$$ that way). Not posting photos of the said child in question on the internet, but also working into my usage rights that the ex-wife will have no printing rights, or access to any of the images by her or her family members.

Does that sound like a good plan?

if you go that route, make sure that you also explcitly state something like:

"(wife's name) and (named family members) have no rights to any usage, including but not limited to printing and digital download. The prohibition of use by these named individuals in no way, shape, or form implies that usage rights are granted to any individual other than (dad's name). Tyler Drumm retains full rights to all images, but agrees to not use images containing (kids name) for publication on the internet or to promote Tyler Drumm Photography.

Any violation of these terms will result in legal action taken by Tyler Drumm photography to the fullest extent of the law.

 

[o hey tyler]

Thanks everyone for your opinions and help. I think I will restrict printing rights to the one particular family and proceed that way.

 

[tirediron]

The concern that I have about the restricted rights method (totally aside from the fact that I'm convinced that this is going to be like playing hopscotch on a minefield) is that you're setting a precedent for yourself. Next client, "I don't want you to use these images of my family on your website". "I'm sorry Ma'am, but that's my policy!" "Well, you didn't do that for the Smith family, and they recommended you!"...

 

[o hey tyler]

The concern that I have about the restricted rights method (totally aside from the fact that I'm convinced that this is going to be like playing hopscotch on a minefield) is that you're setting a precedent for yourself. Next client, "I don't want you to use these images of my family on your website". "I'm sorry Ma'am, but that's my policy!" "Well, you didn't do that for the Smith family, and they recommended you!"...

Well, to be honest, I don't think that I will be doing a lot of photo sessions for divorced families. If another circumstance like this arises, and I get another text like the one I received in the first message, I will do the same thing. I'm not playing favorites.

In any other case, the family will jointly sign a contract that establishes that I have usage rights to images on my website or social media. In this instance essentially a third party with legal grounds to dictate what is done with photos of their minor, but is not a participating party in the photoshoot.

If she wants access to the photos, she should have something to do with the shoot. If she wants to restrict what I can do with the photos, then I can restrict what she does with images that I own the copyright to. No?

 

[tirediron]

I wasn't thinking so much of more divorced families, rather just one that for whatever reason, didn't want you to be able to use their images.

I think what it boils down to is that you're more adventorous than I am Tyler. I hope it goes smoothly!

 

[o hey tyler]

I wasn't thinking so much of more divorced families, rather just one that for whatever reason, didn't want you to be able to use their images.

I think what it boils down to is that you're more adventorous than I am Tyler. I hope it goes smoothly!

Thanks for your thoughts John. I appreciate it!

 

[AaronLLockhart]

I thought that releases/contracts were irrelevant if you were displaying the work in your own portfolio? I was always under the impression that the only time releases/contracts come into effect is when you have intentions on using the images commercially?

 

[MLeeK]

The concern that I have about the restricted rights method (totally aside from the fact that I'm convinced that this is going to be like playing hopscotch on a minefield) is that you're setting a precedent for yourself. Next client, "I don't want you to use these images of my family on your website". "I'm sorry Ma'am, but that's my policy!" "Well, you didn't do that for the Smith family, and they recommended you!"...

Well, to be honest, I don't think that I will be doing a lot of photo sessions for divorced families. If another circumstance like this arises, and I get another text like the one I received in the first message, I will do the same thing. I'm not playing favorites.

In any other case, the family will jointly sign a contract that establishes that I have usage rights to images on my website or social media. In this instance essentially a third party with legal grounds to dictate what is done with photos of their minor, but is not a participating party in the photoshoot.

If she wants access to the photos, she should have something to do with the shoot. If she wants to restrict what I can do with the photos, then I can restrict what she does with images that I own the copyright to. No?

I think you are absolutely correct. However... Just keep in the back of your mind. There is a wedding photographer couple that are being sued for discrimination for turning down a gay wedding on the basis that it was against their personal faith.
I think it's ludicrous, but it's just one example of how insane things wind up in court that shouldn't. I know that this and a few others are always floating in the back of my mind. I'd do exactly what you are doing, but be prepared if something insane happens too.
What is the stance of the father? Would he be willing to give the ex access to the images anyway? Or would he restrict her regardless of your print release, etc?