# Pro Bono Shoot turned legal



## JoeLeeD (Jul 12, 2013)

Hello all,

I am seeking the advice of experienced photographers.  I am more of a hobby photographer, but my Ladyfriend is attempting to build a career in it.  Just having graduated college she tutors for her money and does he photography on the side till it picks up.  A year or so ago, she did a pro bono shoot for one of the girls mom.  She was invited into the host's apartment before the girls were to go off to prom and did a quick shoot of the girls in their dresses.  

She then did an online portfolio, with access limited to the family that requested the photos, so that they could have access to the photos.  

She recently took down the link and shut down the link.

Then yesterday she received a formal letter in the mail from a lawyer stating that the mom (who asked for the shoot) wanted the photos to be removed from any portfolio, and that all photos needed to be turned over to the mother.  If the photos were not turned over legal action would be taken with threat of a costly proceeding.

My ladyfriend was asked to take the photos, invited into the home, did not receive any payment, never turned a profit and has not used the photos for anything other than the portfolio that she created for the mom. 

Is there any legal grounds for this?  Obviously an attorney thinks so, or is this just a strong arm attempt?


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## Tailgunner (Jul 12, 2013)

JoeLeeD said:


> Hello all,
> 
> I am seeking the advice of experienced photographers.  I am more of a hobby photographer, but my Ladyfriend is attempting to build a career in it.  Just having graduated college she tutors for her money and does he photography on the side till it picks up.  A year or so ago, she did a pro bono shoot for one of the girls mom.  She was invited into the host's apartment before the girls were to go off to prom and did a quick shoot of the girls in their dresses.
> 
> ...



Location? Country/State?

Did she have a contract?


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## wyogirl (Jul 12, 2013)

*You/she needs a lawyer to tell you the answer to that.*  However, here is a link to photographer's rights:  Know Your Rights: Photographers | American Civil Liberties Union 

This is why a model release is so important even if money will not be exchanged.

ETA: assuming you are American, sorry if I was wrong.


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## JoeLeeD (Jul 12, 2013)

tailgunner
  new york, an no.

Amanda
  Thank you for the link.


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## ShooterJ (Jul 12, 2013)

No contract?  Ouch..


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## JoeLeeD (Jul 12, 2013)

well, by law, an oral contract/agreement existed that she would take the photos and post them to a webfolio.  However, oral agreements are like opinions; everyone has one and they rarely have legal basis.


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## JoeLeeD (Jul 12, 2013)

she removed the site, I'm just wondering, 

On what grounds can they demand the photos?


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## ShooterJ (Jul 12, 2013)

Well .. as I understand it, a release/contract just grants permission for the photographer to use that material as he/she sees fit.. assuming it's worded as such (obviously there are variations)

However, I don't think the absence of a release means that the photos DON'T still belong to the photographer.

If I took pictures of you and didn't have a release... I wouldn't be free to use them publicly... however, I don't see why you could demand I turn them over to you.

However, I'm not an attorney.. as was mentioned, legal advice is the safe way to go.


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## tirediron (Jul 12, 2013)

I'm not an attorney, don't play one on television, and don't live in the US, however, my understanding of US IP law is that I doubt very much if the client has any grounds for demanding the images.  That said, someone with pockets deep enough to higher a lawyer can be a huge pain in the donkey, regardless of how right they are or are not.  Have you checked to make sure that the lawyer's letter is legitimate?  These days any moron can produce almost any sort of official looking document....


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## vintagesnaps (Jul 12, 2013)

ASMP has some guidelines but this seems like an unusual situation where it might be best as others suggested for her to get legal advice.

Business and Legal FAQ | American Society of Media Photographers


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## amolitor (Jul 13, 2013)

Anyone can write a letter. I'd ignore it and get on with my life.


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## Tailgunner (Jul 13, 2013)

What kinda photos are we talking about? 

I'm no attorney (and strongly suggest you consult one) but I don't see where the client has a legal leg to stand on. Again, I'm no attorney. So with that said, I'm curious as to what type of photos warrant hiring an attorney...privding the letter is legit.


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## JoeLeeD (Jul 13, 2013)

Thank you for the advice everyone.  The law advice is definitely being put into play. I however am weary of scammy lawyers.  I would think that the photos, like any other artistic work are the artistic/intellectual property of the artist.  Drawers, Painters, Writers do not have to relinquish works they make about other people.  If such was the case, my notebooks would stripped of almost everything I've ever written.

As for the nature of the photos,
The photos were just a pre prom shoot.  The girls were in their prom dresses all done up getting ready to go to prom.


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## ShaneF (Jul 13, 2013)

Again no lawyer here, if the mother wants the photos she can pay for them.   They were taken under no contract but with obvious permission to take them.  Taking them down was probably the correct thing to do but they are the photographers property so if the mother wants them she would have to get them on your friends terms. Pictures are always the photographers property unless stated otherwise by a contract.

I would not hand them over, no way no how.  Again just my 2 cents get professional advice.


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## EIngerson (Jul 13, 2013)

The mother let you in her house, let you take the photos (I assume even encouraged it) If she wanted the photos she could have taken her own. I wouldn't give her the time of day, let alone photos. I can't stand shady people.


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## Mach0 (Jul 13, 2013)

Well, theoretically, they were already given to her and removed from online. Assuming the online gallery was full resolution.


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## Mike_E (Jul 13, 2013)

FIrst, if the ladyfriend is serious about going pro then she needs a lawyer either on retainer or at least familiar with her and her business -and willing to take her call when (not if) she needs help.

Second, she owns the rights to the photos unless she was doing work for hire or sold All rights to them.

It sounds to me as though she was linking to your ladyfriend's gallery and is ticked that she can't any more.  She might respond to the lawyer that as owner of both the photos and the gallery where the photos were located she is under no obligation to surrender her property and may keep, sell as art, sell to the subject give away or destroy them as she pleases.  (note that she may not sell the photos as a commercial enterprise without a model release)

If the lawyer makes further threats then she should BE FIRST to file in (small claims most likely) court for harassment (or whatever the LF's lawyer advises).  Being first usually gives you a leg up and if there is going to be a fight get your licks in first.  This also helps in future relations with a client in that instead of having to explain why someone took you to court (if the mother chooses to get publicly  nasty) over her work, she can explain that she acted in self-defense by suing someone who was trying to steal her work through the courts and not only take her work but stiff her with the associated costs as well.

Good luck.


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## Steve5D (Jul 13, 2013)

The site has been closed.

My response would be succinct: "I cannot provide you what I do not have. I deleted the images after I took the site down".

Then again, if she did the shoot for nothing, and was intending to provide the mother the photos, why not just do that? Does the letter say "photos" or does it say "digital files"? If it's the former, have them printed and be done with it. If it's the latter, use the statement above about deleting the images, only use "after I printed them" instead of "after I took the site down".

People are quick to decry the absence of a contract, but those work two ways. If the mother has nothing in writing which states that she's entitled to all of the images, she has no basis on which to demand them...


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## Designer (Jul 13, 2013)

JoeLeeD said:


> She recently took down the link and shut down the link.
> 
> Then yesterday she received a formal letter...



Is there a connection between these two events?  Is there more to the story?  We seem to be missing some information.


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## kathyt (Jul 13, 2013)

What pictures. I accidentally deleted them from my hard drive. Oops.  Sorry mom of prom goers. Oh and by the way, you can kiss my a$$. That would be my response in a sweet and kind way of course. 

Did they order any images? Just curious, because that could be a leg to stand on too.


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## KmH (Jul 13, 2013)

Since the photos were made in private, the photographer would need valid releases to use the photos for self promotion or any *commercial* purpose.
A release is not needed for *editorial* usage.

Unless stated otherwise in a contract signed by both parties, the photographer owns the copyrights, and does not need a release to post the images on the Internet in an editorial use. An online portfolio only accessible by the photographer and the family(s) involved would be an editorial use and would not constitute self promotion (advertising).

The photographer needs to consult with a qualified attorney who would then write a formal letter in answer to the one received.

In this type of dispute, the winner is usually determined by which side has the most money to spend on lawyers.


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## bentcountershaft (Jul 13, 2013)

I would model my reply on the response given by _Private Eye_ magazine to a threat of lawsuit in the early 70s.

Paraphrasing:

I acknowledge your letter of (insert date here) referring to (insert Mom here).  I note that (Mom)'s attitude to future pursuit of this in court will be governed by the nature of my reply and would be therefore grateful if you would inform me what this attitude shall be, were she to learn that the nature of my reply is as follows:  Fu*©*k Off.


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## Gavjenks (Jul 13, 2013)

I'm confused what they're asking for. What does "turning over images" even mean? She already has copies doesn't she? Are they asking you to delete your originals? How would they even ever verify that you had done that?

Letter makes no sense at even a simple practical reality level, let alone legal basis or not.



AFAIK, the only basis they would have for prosecuting you would be if they could make an argument that you broke into their house without consent and took photos of them when they expected to be in private.  The simple fact of the girl looking at the camera and smiling and being posed should easily eliminate this possible interpretation.  Because once you have permission to take photos in a private space, then your copyright is golden, and you're good as far as keeping copies of them, taking them in the first place, and even posting them on a portfolio (not necessarily for sale though), with no obligation to share them with anybody, let alone "turn them over" unless a contract specifies otherwise.

As always, a model release would have been nice as an even more ironclad proof that the photos were invited and consensual, but for non-nude or anything like that pre-prom shots with engaged and smiling subjects, you should be fine.  Might have to hire a lawyer anyway though depending on how much money they want to throw into their ridiculous argument and if they actually pursue it further.






> My response would be succinct: "I cannot provide you what I do not have. I deleted the images after I took the site down".


I advise against this, unless a lawyer tells you to do it.  Don't make any promises you don't have to. If you say this, then you are on record in writing as having voluntarily deleted them, and if they ever show up again, then you could be in real trouble. Especially if they have copies and want to screw with you for some reason by making it look like you still have some, even if you DID delete them.  I don't know, it just sounds needlessly risky to me.


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## Designer (Jul 13, 2013)

For the purposes of deciding this issue in an online forum, we need to hear the other side of the story.


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## SCraig (Jul 13, 2013)

My advice would be to not ask legal questions of an online forum of photographers.  If you have a legal question I would strongly, STRONGLY recommend that you ask it of a qualified attorney and then let them handle it.


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## JoeLeeD (Jul 17, 2013)

Thank you to Everyone for the advice to contact a legal professional.

Update:
Lawyer said that there is no basis for the requesting of the photos.  No legal case could be made, but that does not mean that the lady can't attempt a "Frivolous" case.
Personally, I don't know what that means, but it sounds like the lady would use the intimidation of courts and court fees as a strong arm method to get the photos.  I know little about law, but would assume that there is a form of protection against such cases.


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## Steve5D (Jul 17, 2013)

JoeLeeD said:


> Thank you to Everyone for the advice to contact a legal professional.
> 
> Update:
> Lawyer said that there is no basis for the requesting of the photos. No legal case could be made, but that does not mean that the lady can't attempt a "Frivolous" case.
> Personally, I don't know what that means, but it sounds like the lady would use the intimidation of courts and court fees as a strong arm method to get the photos. I know little about law, but would assume that there is a form of protection against such cases.



Tell her the files have been deleted (regardless of whether or not they have been) and see what her reaction is. That'd be funny.

Honestly, tell her you've consulted an attorney. Odds are she hasn't...


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## The_Traveler (Jul 17, 2013)

I think you shouldn't say anything.

If she wants them enough to get a lawyer letter then she may be willing to buy them.

Now, you are in charge.
Let her make the next move.


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## Mach0 (Jul 17, 2013)

The_Traveler said:


> I think you shouldn't say anything.
> 
> If she wants them enough to get a lawyer letter then she may be willing to buy them.
> 
> ...



X2.
If you've consulted in an attorney and they don't have a case, I'd just let it be. She's not going to do anything.


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## grafxman (Jul 17, 2013)

If she does have to provide the photos I hope shot them in RAW format. Then just provide them that way. Also perhaps she could figure out someway to provide them on a 5.25" or 3.5" floppy.


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## Gavjenks (Jul 17, 2013)

> Tell her the files have been deleted (regardless of whether or not they  have been) and see what her reaction is. That'd be funny.


That would be funny and fraudulent (since the lie would potentially have financial benefits at the expense of another)


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## The_Traveler (Jul 17, 2013)

I think eventually selling copies to her for your price plus lawyer fees would be the ultimate good-guy-triumphs-over-bad-guy experience.


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## mrbadwrench (Jul 17, 2013)

Agree to sell them to her. Recieve payment, send them in raw format. Done.


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## deeky (Jul 17, 2013)

grafxman said:


> Also perhaps she could figure out someway to provide them on a 5.25" or 3.5" floppy.



Now that would be funny.  Show up with a big a$$ floppy disk that really is floppy.  Better yet, make sure it is formatted for a Commodore.  

Thanks for the laugh.


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## Gavjenks (Jul 18, 2013)

If you can sample your photos down to a few kilobytes, you could send them on magnet core memory modules, circa cold war era technology:
Magnetic-core memory - Wikipedia, the free encyclopedia

Or if using a floppy, be sure to choose an 8" floppy.

Encoding the image as bursts of digital binary static on a vinyl record would also be an acceptable and realistically achievable choice =D You could easily fit a whole portfolio on one vinyl.


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## dsiglin (Jul 18, 2013)

Best. thread. advice. ever.


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## AngelosPhotography (Jul 18, 2013)

Sending the photos on RAW format would be hilarious, in my own opinion XD


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## The_Traveler (Jul 18, 2013)

AngelosPhotography said:


> Sending the photos on RAW format would be hilarious, in my own opinion XD



With due respect to the humor involved, if the woman eventually pays, imo, she should get finished products with embedded copyright data, exactly what she pays for, so she has no comeback against the shooter professionally.
Lowering oneself to her level wouldn't be a good career move.


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## KmH (Jul 18, 2013)

It's just an example of using an attorney as a blunt weapon.

In legalize you just send a reply that says - "Your claim is baseless and you can pound sand. Here is our counter suit."

http://www.freelegaladvicehelp.com/...awsuits/How-To-Fight-A-Frivolous-Lawsuit.html


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## Richichi (Jul 19, 2013)

Obviously the woman can demand whatever she wants and since the property belongs to you I would heed the advice of this group. Send her a detailed invoice for all photographs and let her make the next move. I might add a footnote to the bottom of the invoice that reads .... If the terms of this sale isn't satisfactory to you then please contact my attorney Siben & Siben @ 516-666-6666 for further discussion. Thanks


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## Garbz (Jul 19, 2013)

JoeLeeD said:


> Is there any legal grounds for this?  Obviously an attorney thinks so...



Attorneys don't think. They just smell money. The number of stupid legal letters and demands I've seen in my time are incredible. Hell some attorneys even manage to get themselves disbarred. Thinking is a dangerous thing. 

Now if he read rather than just thought he would know that baring any contract that states otherwise a photographer automatically holds the copyright for any photo they take. What I'm less sure about is who has to pay the bill when you win this frivolous case.


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## gsgary (Jul 19, 2013)

Whats the difference between a computer and a blonde ? A computer does not laugh at a 3 1/2" floppy


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## texkam (Jul 19, 2013)

It takes very litttle effort to make a threat. It takes considerably more to actually follow through. Most people are not willing to put forth the time and money to pursue it, especially if you complied with the demand to remove from any portfolio.


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