: TER General Board Discussion : But if they go to court, then won't they need to subpoena TER's records? eom

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But if they go to court, then won't they need to subpoena TER's records? eom

AbbiMinx See my TER Reviews 2014 reads

posted 9 years ago

1 / 30

Rights to photos...

So, forgive me if this thread isn't appropriate for the "general discussion" whatever I'm too tired to think.

Just got an email from the company that did my photos I use on my website demanding I take them down, that I'm in violation of their terms of service. Now, I thought I had rights to the photos since I'd paid not just for the shoot but the photos themselves.

Anybody have insight on this? Is it worth fighting?

Thanks!

FatVern 474 reads

posted 9 years ago

2 / 30

No Idea.

Doubt if they would take any legal action if you continue to use your photos.

Posted By: AbbiMinx

So, forgive me if this thread isn't appropriate for the "general discussion" whatever I'm too tired to think.

Just got an email from the company that did my photos I use on my website demanding I take them down, that I'm in violation of their terms of service. Now, I thought I had rights to the photos since I'd paid not just for the shoot but the photos themselves.

Anybody have insight on this? Is it worth fighting?

Thanks!

Doc.Holliday 24 Reviews 369 reads

posted 9 years ago

3 / 30

It depends...

This will likely depend on their terms of service (if you agreed to them) and/or any contracts you have with the company that did your photos.

By default, the photographer/service who took the photos will likely own the copyrights to the photos. Artists who create art own the copyrights to the artwork at the start. That includes the rights to make copies, publicly display, etc.

When you buy a painting, photo, etc. you don't automatically get the copyrights, too. You get the artwork, but the artist retains the copyright by default. That is counter-intuitive for a lot of folks. If you want the copyrights, you'd have to make a deal for those, too. Lots of artists, photographers, etc. will sell you the copyrights with the artwork, but they usually charge extra for it. For example, photographers may charge a lot more for the digital pictures (with the copyrights) than they charge for just a couple of prints. If you buy by the print, you have to go back to them every time you want another print. If you have the rights, you can make your prints somewhere else and cut them out. Photographers make more money if you buy more prints from them, so if they're going to give you the power to make your own prints with the digital copy, they will usually want to be compensated for that.

So here it's possible that the photographer/service retained the copyrights and are upset that you are putting them on the internet without paying the extra cost of buying the copyrights. It's also possible that they transferred the copyrights to you but in your agreement with them you agreed to some restriction (for example, they must receive proper credit) that you didn't comply with.

Bottom line... Take a good look at the terms of service and any contract you may have signed with them. The fine print could be the difference here.

Good luck!!

IBDPhotography 376 reads

posted 9 years ago

4 / 30

Not enough info.

Posted By: AbbiMinx

You didn't provide enough information for anyone to really know one way or another the type of rights you have to these photos. What were their terms of service that they claimed you violated? Did you receive a usage license (agreement) and if so, what were the terms? If there was a contract, what did it stipulate? If no, contract was signed, were there any written agreements in place (i.e., emails, etc.)

If you're going to take legal action, I would try to get this thread deleted from TER.

FYI, by not having signed a contract doesn't mean that you could do 'anything' you wanted with the photos as stated in a previous post

impposter 49 Reviews 423 reads

posted 9 years ago

5 / 30

Water under the bridge

Whenever I give free advice (and worth everything you pay for it!) on the boards about photo shoots, I almost always mention having a written contract for various levels of protection. (You don't want the photog using your pics in a manner that you don't want; you want the rights to use your photos as you want; timely delivery of files; extra services (Photoshopping); etc.)

From one site (see link), it says that the rights to the product of a "work for hire" (your pics) belong to the customer, not the photog (when there is a written agreement). When the photog takes pictures of a cloud or a train and sells you a print, the photog still owns the copyright, you just own a copy of the pic for your personal enjoyment and non-commercial use.

Posted By: AbbiMinx

If this doesn't come to an easy resolution for you (pay a small fee; revise the contract), I recommend going back to square one, archive this set of pics, and get new pics under contractual terms that meet your needs (and theirs).

NOTE: In another thread on the NY Board, it was noted that someone ("Melissa") was using stolen pics, probably from the photog's own web site where he posts 100s of pics, almost all without any watermark. I think you should stipulate that your photog not post your pics anyplace w/o a theft-deterring watermark.

Another one: http://blog.kenkaminesky.com/photography-copyright-and-the-law/

-- Modified on 8/9/2016 9:38:29 PM

Related Link: Photo copyright info

IBDPhotography 428 reads

posted 9 years ago

6 / 30

Re: Water under the bridge

Posted By: impposter

From one site (see link), it says that the rights to the product of a "work for hire" (your pics) belong the customer, not the photog.

This is incorrect. The OP's circumstances is not a "work for hire" situation.

And even if it was, the customer would not have full rights. An example of a 'work for hire' situation would be if I was hired by (let's say) Sears to work in their portrait studio. I would be working for them under a 'work for hire' designation when I sign employment paperwork which would specifically spell that out.

Additionally, even though, I, as the photographer, pressed the shutter button to take the photo, I wouldn't own the copyright - Sears would - since my employment is under a 'work for hire' designation

scoed 8 Reviews 534 reads

posted 9 years ago

7 / 30

Generally the photographer owns the copyright unless you have documents showing otherwise.

And that means you are restricted by the contract you signed and any write agreements between them an you. I would have to see all documentation regarding the photos to have any clue where you stand. Ladies read all documents regarding your photos and get everything written down. Make sure you understand what the contract means and exactly what rights you have to the photos and what uses the photographer can use them for. Just because you paid for the photos doesn't mean you own them and there very well can be restrictions in their use.

souls_harbor 361 reads

posted 9 years ago

8 / 30

Copywrong

This is one of my pet peeves. Of course copyright law is what it is. But it isn't what I think it ought to be.

There are a million billion photographers with ten zillion copyrighted works that no one is ever going to see. Why? Because every frick'n photographer on the planet thinks one of his photos is finally going to land him that cool million dollars. And he'll gladly stab you in the face for just thinking about using one of his masterpieces.

Now there is no hope of changing copyright law because huge interests such as movies, TV, record labels all have congress in their back pockets. Every time copyrights are about to expire, Disney calls in favors and the congress extends the copyright life.

But ... you can look around for people who are good with the camera but not pros (although I know many amateur photogs who really aren't that good yet watermark every little piece of crap they produce.)

Not everyone needs the income and not everyone thinks every picture they take is the next Rembrandt. But if you go with a pro -- well, you're screwed.

impposter 49 Reviews 343 reads

posted 9 years ago

9 / 30

Re: Water under the bridge

I wonder if I'm violating a copyright by pasting a paragraph from one of the sites I cited:

"There is one exception to whether you can or should copyright images: work-for-hire contracts. Here, if you shoot an assignment for a client with whom you have signed a contract that specifically uses the phrase "work-for-hire" (or "work make for hire"), then the client owns the copyright, not you. In fact, you have no rights to them at all. This is one of those cases where it's very easy to know: you must have a contract, and it must have used that phrase. If you don't meet both of those exceptions—regardless of what anyone (such as your remorseful client) tells you—then the images are yours."

If OP goes to the photog and says, "I want to HIRE you to produce a portfolio of pics of me." is that not a work-for-hire? Is a wedding shoot a work-for-hire?

My examples of "her pics" versus a picture from his portfolio or catalog (a cloud, a tree, a pizza) were meant to differentiate between a work-for-hire (her pics) and buying an existing pic off the gallery wall.

Sorry if I was off base on this but my free advice does come with a money back guarantee.

I still think that if OP's problem isn't easily resolved that she should stop using the pics and do a new shoot with a good contract in place

Smallfish 385 reads

posted 9 years ago

10 / 30

Terms of service MAY apply for software programs and websites...but NOT for videos and/or pictures. That said, it depends on the contract you signed.

By default, the company or photographer that took the pictures *absolutely* has copyright on those pictures. So you are violating their copyright if you use or distribute those pictures without their permission..even if you paid for them to be taken.

BUT....the typical contract a studio should use for such shoots grants the client (i.e, YOU), the exclusive, free, world-wide distribution rights to the photos. Again, this will be the *contract* that you signed before the pictures were taken. Unless you signed something that also stipulates that their "terms of service* can apply some limitations on your distribution rights, their TOS don't apply.

It is also worth noting that you have rights to your likeness, by default. So the company / photographer absolutely does NOT have rights to publish their pictures of you unless you signed a release form.

Bottom line...it's probably worth at least contacting a lawyer to review their letter and the contracts you signed. Hopefully the lawyer will confirm that the contracts assign distribution rights to you...and they have no legal grounds to restrict how and where you choose to distribute the pictures you paid to have taken. And the lawyer can then write a letter that tells them to go fuck themselves (in legal terms, of course!)

mrfisher 111 Reviews 455 reads

posted 9 years ago

11 / 30

How about naming the A-holes who are giving you a hard time...

so that other gals won't have to hassle with them like you are now

ripmany 9 Reviews 528 reads

posted 9 years ago

12 / 30

scam scam email

I would say most dont have time to do a Google search and if you scan them in it even less likely to find. That would have to look a hooker adds double time. Photos studios do sell license but get get realistic it possible sent out from a scammer that going to try to get some money out of you. Simple loook at adds for pro photos send out a email that scares the heck out of you then when she ask to buy the rights get her cc number.

Posted By: AbbiMinx

scoed 8 Reviews 389 reads

posted 9 years ago

13 / 30

Please read your own quote very carefully

Posted By: impposter

I wonder if I'm violating a copyright by pasting a paragraph from one of the sites I cited:

"There is one exception to whether you can or should copyright images: work-for-hire contracts. Here, if you shoot an assignment for a client with whom you have signed a contract that specifically uses the phrase "work-for-hire" (or "work make for hire"), then the client owns the copyright, not you. In fact, you have no rights to them at all. This is one of those cases where it's very easy to know: you must have a contract, and it must have used that phrase. If you don't meet both of those exceptions—regardless of what anyone (such as your remorseful client) tells you—then the images are yours."

If OP goes to the photog and says, "I want to HIRE you to produce a portfolio of pics of me." is that not a work-for-hire? Is a wedding shoot a work-for-hire?

My examples of "her pics" versus a picture from his portfolio or catalog (a cloud, a tree, a pizza) were meant to differentiate between a work-for-hire (her pics) and buying an existing pic off the gallery wall.

Sorry if I was off base on this but my free advice does come with a money back guarantee.

I still think that if OP's problem isn't easily resolved that she should stop using the pics and do a new shoot with a good contract in place.

Notice the clear words "signed a contract", it will not hold if it is not in writing. I have been using photos for advertising for years. I have also uses video. Everything must be in writing or you have nothing.

Your use of the copyrighted text should be covered under "fair use" laws so your safe.

-- Modified on 8/10/2016 8:24:04 AM

wholewheelofchz 6 Reviews 325 reads

posted 9 years ago

14 / 30

A point of clarification

There is no magic in the words "work for hire"

As long as you have an agreement in writing that clearly states who owns the copyright, courts will enforce it

scoed 8 Reviews 380 reads

posted 9 years ago

15 / 30

That may be unwise.

At least until she is sure of her legal standing. Publicly shaming them can escalate this if they operating within their legal rights and are willing to enforce their legal ownership of their copyrighted photos. Courts are very public and will permanently out her. She has better have all her ducks in a row. Contacts need to be read and understood before entering them. Business contacts especially those involving copyrighted material need to be in writing. If this is a he said, she said mess she will most likely loose.

Now if she has her ducks in a row, with a clear written contract, she should out them. It would be unlikely they would risk further damage to their brand if they have no case.

mrfisher 111 Reviews 366 reads

posted 9 years ago

16 / 30

True, but for them to prove that she is the person outing them....

they would have to get subpoenas for TER's records, and since they are in The Netherlands, that would be pretty hard to do; so her vulnerability is pretty limited

scoed 8 Reviews 350 reads

posted 9 years ago

17 / 30

Wrong.

Her TER account is linked to her profile. Her profile has her site. Her site has her photos taken by them. They likely have a contract for those photos. That contract likely has her real information. Everything in a neat package. Besides they likely can't directly go after her for such a post, but they likely go to court over the photos if they are in the legal right here. Such a case would out her publicly. This is a business matter and needs to be handled professionally.

quantavore 435 reads

posted 9 years ago

18 / 30

Re: It depends...

Doc is absolutely correct. It will completely depend on the terms of agreement/contract that you signed to get the work done. Without any other specific assignment of copyright, all the rights to the photos are held by the photographer.

impposter 49 Reviews 435 reads

posted 9 years ago

19 / 30

What is your (Cost of Pics) minus (Cost of Lawyer)?

If the photog's complaint is legit (and not a scam as ripmany suggested, below) and if the complaint has some substance (not 100% clear to you who owns the rights you need to use the pics in your ads) then do some simple math.

What was the cost of the shoot or a replacement shoot? $P (for photos)

What is the cost of hiring an attorney to represent you and clarify ownership and other rights? $L (for lawyer)

I have a feeling that legal fees will be greater than the cost of new shoot. P - L = negative number.

So I'm repeating myself to suggest that if you can't come to a simple agreement with the photog, put the pics in your off-line archive for personal use and arrange a new shoot. Make sure you have a written agreement (contract or otherwise) for the new shoot and that all of your concerns are addressed in writing. I always suggest the inclusion of a 'timely delivery' clause, too. Not an unenforceable "I'll have these for you in a few days!" as you walk out the door.

None of the "I'll gladly pay you Tuesday for a hamburger today." You know where that ends up.

If you plan to shoot again, make sure it is with an ESCORT FRIENDLY photog. If looking for a local studio, I'd search local escort ads for the style and quality you like and ask the Provider who took her pics ... and didn't block her use of her pics in her ads. There are also escort friendly photogs who tour, maybe to your area. And you might prefer to use a well known escort photographer when you tour to their home city (studio).

Best of luck with the next batch of pics!

-- Modified on 8/10/2016 1:35:16 PM

mrfisher 111 Reviews 368 reads

posted 9 years ago

20 / 30

But if they go to court, then won't they need to subpoena TER's records? eom

END OF MESSAGE

wholewheelofchz 6 Reviews 315 reads

posted 9 years ago

21 / 30

Well....

There may be some other way for them to authenticate her TER post. Like if it contains details that only she knows. But, no question that to hold her liable for a TER post they would need to prove that the post came from her

scoed 8 Reviews 502 reads

posted 9 years ago

22 / 30

No, It is a copyright issue not involving.TER.

Screen shots of her site would suffice.

scoed 8 Reviews 509 reads

posted 9 years ago

23 / 30

True but I was never talking a liable suit.

Those kind of suits are difficult to win. You must prove she posted the post, that the post was a lie, and they suffered financial loss as a result. That will not happen.

I was talking about them escalating their stance regarding the possible copyright violation as a result of her publicly bad mouthing them. A filing likely has real consequences beyond result. Plus winning that suit is much much easier. Never escalate a fight until you know you can win, and winning is worth the cost.

IBDPhotography 298 reads

posted 9 years ago

24 / 30

Re: Water under the bridge

Posted By: impposter

I wonder if I'm violating a copyright by pasting a paragraph from one of the sites I cited:

If OP goes to the photog and says, "I want to HIRE you to produce a portfolio of pics of me." is that not a work-for-hire? Is a wedding shoot a work-for-hire? ...

I still think that if OP's problem isn't easily resolved that she should stop using the pics and do a new shoot with a good contract in place.

No, you're not violating a copyright - as already stated, your quote would fall under 'fair use.'

No, just hiring a photographer to produce photos for yourself does not make it a 'work for hire' designation and wedding photography is also not a 'work for hire' either. Creating paperwork that states a 'work for hire' designation doesn't automatically make the case either as there are certain criteria that needs to be met by the courts.

But you are right that the simple solution (beyond seeing what the contract, usage license, or any written agreement states) is to not use the photos as a lawsuit could potentially cost much more than the cost of the photoshoot itself.

Sidenote: Btw, I received an inbox message but unfortunately I do not know who it came from nor do I know the contents of the message as I am not a VIP member.

impposter 49 Reviews 366 reads

posted 9 years ago

25 / 30

Re: Water under the bridge

Posted By: IBDPhotography

Geez! Lots of people post their wedding pics on publicly accessible photo sharing sites. Their contracts must have allowed for such use, no? Or are they going to be sued (unless they pay the photog an extra fee)?

Sidenote: Btw, I received an inbox message but unfortunately I do not know who it came from nor do I know the contents of the message as I am not a VIP member.

Not from me. (I did PM scoed.) Any body else

IBDPhotography 247 reads

posted 9 years ago

26 / 30

Re: Water under the bridge

Posted By: impposter

Yes, most wedding photography contracts will have a provision that spells out licensing and usage for both parties. I would imagine that the licensing for any type of social media is already included in the photographer's fees as that's typically one of the purposes of having wedding photos in this digital age.

Personally, I wouldn't hire a wedding photographer if he/she/they doesn't/don't allow non-commercial usage of the photos that I paid him/her/them to take. It just doesn't seem like a good business practice for wedding photography, at least to me.

-- Modified on 8/11/2016 1:54:00 AM