# Legal Advice.....



## Nessy024 (May 30, 2012)

Hello im going to make a long story short, but a client is taking me to small claims court because i did a photo shoot for her and she claimed she did not like them. No other reason and that there was nothing i could fix do to fix them! She only wanted her money back and i told her no way! They were well processed photos and gave her 163 pictures when only promised 40. 2 hours for $100 plus a cd. She called me complaining i left 5 minutes early so i took off $5 from her total....problems...Now the biggest mistake i made was not having her sign my contract. I know i know big fail. I sent it to her and she never sent it back, then i posted her photos to my gallery for proofing and the problems started.Regardless, she also promised a cd with all of the photos on there. But on the contract it says " you will receive a cd with full copyrights"Can i go back and say, you will get the cd but with my watermark because you did not sign my contract, so you do not have copyrights? Shes been acting crazy and causing alot of problems for me so i will play hardball.My question is do i have to pay for the copyrighhts? Im so lost how that law works. Any help would be great! Thank you!


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## o hey tyler (May 30, 2012)

If you sent her a contract, and she never sent it back, why did you agree to do the shoot?

Keep in mind, I'm NAIL, so I'd suggest you contact lawyer.


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## tirediron (May 30, 2012)

It's $100 - give her money back and call it a cheap lesson. As you've already acknowledged, you went ahead and did the work without a contract in place. As for rescinding the conditions of the contract... there isn't one. 

Your profile doesn't indicate a location/region and copyright law varies by state/province and country. The only one who can accurately answer those questions is a lawyer and that will cost you more than $100. Notwithstanding that English may not be your first language, I will respectfully submit that based on the way you've phrased the question(s), it seems to me that you do not yet have the business acumen to be acting as a professional photographer.


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## jowensphoto (May 30, 2012)

John is right, although (if you knew you'd win) it'd be fun making her pay court fees for such a small amount!


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## Nessy024 (May 30, 2012)

Yes I understand, I dont think she will go through with the court to be honest, but I like scaring her and I know Ill win. Just wondering if I could push her a little further and get that contract signed another way. I feel taken advantage of by someone looking to save nickels and dimes.


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## Nessy024 (May 30, 2012)

And John, this is professional photography? OPA Fall Hafla | Facebook


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## o hey tyler (May 30, 2012)

Nessy024 said:


> Yes I understand, I dont think she will go through with the court to be honest, *but I like scaring her and I know Ill win*.



How are you so certain?


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## Nessy024 (May 30, 2012)

I already spoke with a lawyer but I didnt go into these copyright details.


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## IByte (May 30, 2012)

Nessy024 said:
			
		

> Yes I understand, I dont think she will go through with the court to be honest, but I like scaring her and I know Ill win. Just wondering if I could push her a little further and get that contract signed another way. I feel taken advantage of by someone looking to save nickels and dimes.



You need to grow up and stop being spiteful.  You push them, they push back harder.  You seem to venting on them because you're mad that you didn't get your permission slip signed.  That's the cost of doing business. If you're going to be in a business, you have to start treating it as such and be the bigger person.  Lesson well learned and don't fall for it again, regardless of who is your client.


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## Nessy024 (May 30, 2012)

I know your very right, I dont care or need the contract. I was just asking to see if their was a way around it. I But i did learn alot from all of this. Thank you


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## tirediron (May 30, 2012)

Nessy024 said:


> And John, this is professional photography? OPA Fall Hafla | Facebook


I'm sorry; what does that image have to do with the topic at hand?  Strictly speaking, no, that is not professional photography, that is pro bono work done for a local dance troupe.


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## 480sparky (May 30, 2012)

Nessy024 said:


> I already spoke with a lawyer but I didnt go into these copyright details.



What's copyrights got to do with the disagreement?


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## o hey tyler (May 30, 2012)

Nessy024 said:


> I know your very right, *I dont care or need the contract.*



You do in the future. You don't now considering you already got boned by the client.


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## IByte (May 30, 2012)

Since its only one side of the story I will say just this.  Anytime a client wants me to recover their data, I make them sign a contract non-negoitable or I leave.  Why? Because anytihing that I'm retrieving is a potential lawsuit, always cover you rear end and good luck in the future.


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## Nessy024 (May 30, 2012)

ok thank you everyone for your advice! And for sure lesson learned...contract for everyone!


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## mjhoward (May 30, 2012)

Will we be seeing you on Judge Joe Brown?


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## Bitter Jeweler (May 30, 2012)

Thanks for the LOL's. :thumbup:


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## Kerbouchard (May 30, 2012)

You never did answer what country you are in.  It makes a big difference, and there isn't really a way for somebody to give you useful advice without that information.


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## bratkinson (May 30, 2012)

Once upon a time, considerable business was transacted with just a hand shake or some verbally stated agreement.  Sadly, not anymore.  Everything MUST be in writing, and even the smallest details must be spelled out to the letter.  Any omissions in the contract (eg, loopholes) will quickly come and bite you in the butt!  

I've worked under personal service contracts, consulting contracts, work-made-for-hire contracts, unionized labor contracts, and even software leasing contracts with various small and large organizations.  If it's not in the contract, you'll be the one that loses!  Been there, done that!  

Just walk away.  Another lesson from the SoHK - School of Hard Knocks.


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## xjoewhitex (May 30, 2012)

Personally I would give the money back to her and take this as a lesson. I am curious tho, you say there was nothing you could do to fix them? With that said alone I would have gave back the money for not producing professional images. Do you feel that maybe, your not so ready to be charging for your work? Bad business becomes no business.


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## KmH (May 31, 2012)

Your question - "Do I have to pay for the copyrights?" cannot be answered because you have not said what country your 'business' is in.

A verbal agreement is still effectively a legal contract. Once again, without knowing what countries laws apply makes it impossible to offer more than broad strokes of advice.

Problems with a verbal contract arise when one party feels the contract was broken. Then the court has to decide which side of the story is closest to the truth. You cannot change contract terms after the fact, but you can negotiate a mutually agreed upon resolution to the dispute. Having some training at negotiating would certainly help with that. The Photographer's Guide to Negotiating 

Here in the USA, using the language "you will receive a cd with full copyrights" could easily be interpreted as meaning you no longer own the copyrights to any of the photos on the CD. In the USA, the photographer owns the copyrights as soon as the image sensor data is written to the camera's memory car. If you are in the USA, visit www.copyright.gov and read their FAQ's page.

As it is, the language you should use should state that you retain copyright, and all other rights to the photos, and then specify in what way(s) the client can use the photos you made. That is called use licensing.
(noting you own all rights (All Rights Reserved) offers legal traction everywhere outside the USA)

You have created a variety of problems for yourself by failing to use even the most basic business practices. Based on your contract language about copyright it appears obvious your contract has not been reviewed by a qualified attorney. You might wonder what other legal faux pas your contract contains.

The bottom line is, even though you are being sued in small claims court, you need advice from a qualified attorney because you apprently have no idea where you stand, in a legal sense.

I doubt you would win the suit, so be prepared to give the client back every penny.


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## Kerbouchard (May 31, 2012)

KmH said:


> I doubt you would win the suit, so be prepared to give the client back every penny.



Why wouldn't he win the suit?  We haven't seen the pictures, so it is impossible to judge.  Perhaps, they are crap and the OP should return the money...or perhaps the customer woke up hungover and doesn't like the pictures.

Without seeing the shots, it is impossible to judge.  As you correctly point out, a verbal contract and a handshake is still binding.


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## ceejtank (May 31, 2012)

If she didn't sign the contract, then it doesnt exist, the contract was never legalized. That's my .02.  If she didn't sign it, theres nothing you were legally required to do.  She paid you to take some pics on a verbal contract since she didnt sign the physical contract, you could argue she jsut take the pictures and don't edit them.


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## Railphotog (May 31, 2012)

Curious as to what would be her claim in the small claim court?  Just that she didn't like the photos?  Can't see how this would be claimable.  Now if you didn't deliver any photos at all, I could see a claim.   She might just be extremely hard to please, and no matter what any other photographer would do, she might not like them too - make a claim against them too?


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## Tony S (Jun 1, 2012)

A photoshoot, editing and CD for $100 ??  And you are wondering why they want their money back?

  Obviously they value your work as much/little as you do... those who take such small amounts of money for that amount of time and work get customers of the same value.

  Give back the money and take it as a lesson learned.  Now go get some education on being a business person.


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## jamesbjenkins (Jun 1, 2012)

Nessy024 said:
			
		

> ok thank you everyone for your advice! And for sure lesson learned...contract for everyone!



Yes!!!

Almost every single story I've ever heard like this goes back to someone who thinks they deserve to call themselves a professional photographer, but there's nothing professional about them.  The professional photography industry is 80% business acumen and marketing, and 20% photography.

My contract is 9 pages long.  4 pages of filling in information and checking boxes, and 5 pages of legal stuff and clauses.  I'll NEVER be in a situation like this.

In the grand scheme of things, refunding a client $100 is an extremely small price to pay for learning this lesson.


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## jamesbjenkins (Jun 1, 2012)

And btw, if you're only charging $100 for a portrait session with a CD...

You either don't know the first thing about running a photography business, or your photos stink.

"Professionals" that undervalue their own work in turn undervalue the entire industry! 

Take a look at what it costs you to do business and reevaluate your pricing strategy, or go away and do something else with your time.  You're not helping anyone by charging so little for your work.


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## unpopular (Jun 1, 2012)

(I am not an attorney. The following is provided as conjecture only and is not intended as legal advice, educational information or otherwise useful legal information to be applied to any specific circumstance.)

I do not think the photographer would need to pay back the full amount. There was no promise of satisfaction, and even if there were, it would be up to her to prove that there was - at least in most Commonwealth countries and other jurisdictions with the "innocent until proven guilty" concept.

If the images are egregiously poorly executed, it may be possible that she'd win. But you also provided her with a product which would have normally costed her at minimum 5x what you charged. This is like me going to burger king, spending eight bucks on a meal and then wanting my money back because it wasn't a five course meal. It is reasonable that she can only expect $100 quality when she is getting a $500 (at the least) package. It's very difficult for her to prove that the quality is poor, especially when you only charged $100 - a rate that would be reasonable for your time alone, never mind the license. Without a warranty of satisfaction, she will likely need to prove that the product received is unreasonably poor, that it's not worth even a measly hundred bucks, and that any reasonable person would want their money back.

If I were in a hypothetical situation where I gave a client a product without warranty of satisfaction, and was willing to go to court over a measly $100, and again I am not an attorney and cannot provide you with legal advice - meaning what I am about to say may not be and should not be applied to your specific case without consulting an attorney -  I would argue that because there was no contract, there were no terms provided which permit a warranty of satisfaction, and that because you had provided her with valuable goods that no reasonable person can expect a refund. I would then itemize each image, plus the time I spent. So if you gave her 140 images, I would break it down like this:

I provided the following products to the client as a package at the agreed total of $100:
140 images with licensure without restriction to use at client's discretion at a rate of 53.57 cents each ($75 total)
1 CD ROM provided at a rate of $5 ($5 total)
2 hours sitting at $10/hour ($20 total)

With a breakdown like this, it's clear she got a bargain no matter how bad a photographer you are.

OTOH - I would tend to agree with others, letting this escalate will only harm you in the long run. Have an attorney draft a document stating that by receiving a refund she must forfeit all images provided and their associated usage, delete any copies made and understand that any future use of these images would constitute a copyright violation. While you might have to eat it on this one, she also can't have it both ways.


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## cgipson1 (Jun 1, 2012)

Nessy024 said:


> Yes I understand, I dont think she will go through with the court to be honest, but *I like scaring her* and I know Ill win. Just wondering if I could push her a little further and get that contract signed another way. I feel taken advantage of by someone looking to save nickels and dimes.



I have never known a PROFESSIONAL that likes SCARING their clients.... sounds very UNPROFESSIONAL to me!  Why don't you post some of your work.. and let us evaluate it?


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## unpopular (Jun 1, 2012)

+10 internets for gipson!

53.5 cents says he or she sucks.


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## Overread (Jun 1, 2012)

Railphotog said:


> Curious as to what would be her claim in the small claim court?  Just that she didn't like the photos?  Can't see how this would be claimable.



I would see it that any judgement would be based upon what quality is promised to the client (ie the photographers portfolio) and then comparing that portfolio to the produced work. Whilst at the same time listing any exacerbating conditions at the time of the actual shoot (eg adverse weather conditions, difficult client, equipment failure etc..). 

It's something that might not be clean cut every time, but should be able to evaluate if the photographer has done their best to deliver what was promised or if they've falsely represented their skills.


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## unpopular (Jun 1, 2012)

^^ that is an interesting point. I am not sure if a portfolio would be a 'promise of quality' or not. Is it reasonable to assume that the photographer uses his or her best work, rather than typical work, as a marketing tool rather than as an example of what to expect?


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## Overread (Jun 1, 2012)

unpopular - whilst a photographer would use their best work, they would still be using work representative of the quality they can deliver for those services. So there shouldn't be a massive difference between that and what they deliver to a client unless there were more extreme limitations on that work which meant that the photographer was unable to produce their best under those conditions.


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## cgipson1 (Jun 1, 2012)

unpopular said:


> ^^ that is an interesting point. I am not sure if a portfolio would be a 'promise of quality' or not and if it is reasonable to assume that the photographer uses his or her best work, rather than typical work, as a marketing tool rather than as an example of what to expect.



Exactly! We see it all the time! If someone takes 100,000 photos... and only gets ten good shots, guess which ones end up on their website as representative of their work?    lol!  (Hint.. not the 999,990 bad ones!)


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## unpopular (Jun 1, 2012)

Overread said:


> unpopular - whilst a photographer would use their best work, they would still be using work representative of the quality they can deliver for those services. So there shouldn't be a massive difference between that and what they deliver to a client unless there were more extreme limitations on that work which meant that the photographer was unable to produce their best under those conditions.



This is likely accurate, but the difference in quality would also have to be extreme and clearly represented, enough so that any reasonable person would agree that there is a significant difference in quality.


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## Overread (Jun 1, 2012)

unpopular - exactly there would have to be a marked difference to get a judgement that the photographer had failed. On the other hand if the photographer (for example) attended a few lighting workshops and snapped a few photos of a model posed, lighted, makeuped etc.. all by other parties and then presented that as their work for, say, portrait shooting services -- that would be a photo, which whilst theirs, would not represent their own work. As such whilst it would be their work, it would likely show up a false against regular portraits they produced unless they had all the skills to reproduce the workshop situation without outside assistance to their work enterprise.


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## Kerbouchard (Jun 1, 2012)

Overread said:


> unpopular - exactly there would have to be a marked difference to get a judgement that the photographer had failed. On the other hand if the photographer (for example) attended a few lighting workshops and snapped a few photos of a model posed, lighted, makeuped etc.. all by other parties and then presented that as their work for, say, portrait shooting services -- that would be a photo, which whilst theirs, would not represent their own work. As such whilst it would be their work, it would likely show up a false against regular portraits they produced unless they had all the skills to reproduce the workshop situation without outside assistance to their work enterprise.



Still, that should be a fairly easy defense.  If the client wants a shot that looks like it had a stylist and MUA, then the client needs to pay for a stylist and MUA.  Better yet, the OP should be building something like that into the price if that is the expectation.


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