# Contract Goofiness (Rant/Advice Needed)



## squee (Aug 25, 2010)

I did pet portraits last weekend. They came out great and my clients love them. I made the mistake of showing up to their home without my contracts because my laptop broke down the night before and I hadn't gotten my files from my techie yet. We did the session. After the session they approached me that I wouldn't be using the photos to sell or commercially without consulting them. I simply replied saying that technically I could, but I don't currently sell my photographs to outsiders. I also told them that I wouldn't have to but if I was approached by someone who wanted to buy one of their photographs I would tell them (not ask) and share with them some of what I made.

I got my files yesterday and sent them via email to the client. They replied saying that they would not sign the model release and edited the 'permission to use' saying I couldn't use them commercially or to make a profit. They also did not email me back the contract saying that THEY could not use them commercially or make a profit on them.

Also, I requested that they MAIL them back to me signed but instead they scanned them in and emailed them back after signing them. I'm not comfortable with this, I really want the original copies.

I want to be fair. I wouldn't go selling photographs of them without giving them a small part of it. But I feel kind of violated or.... disrespected? Like they are trying to tell me that they OWN the images even though I did the session for free and they haven't even bought their prints yet. I'm bad at confrontation but I need to find a way to say "Hey! All you did was pose. I put my heart and soul and time and energy into each and everyone of these photos. Time I could have spent doing homework or out with my friends or what-have-you."

Just feels like a slap in the face. I don't know. I don't intend on anyone's advice to replace legal counsel, just wanna see what you would do. I just know that I'm PISSED and kind of don't want to sell them their photos now. layball:

I mean, TECHNICALLY, if I sign this edited contract that I can't make a profit on the photos, and I do it before they purchase them, they could take me to court for them for free! I would be violating the terms of the contract by selling them to THEM!


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## Mustlovedragons (Aug 25, 2010)

I don't know, as I am not an attorney nor have I had this happen but it may be a case of "hard lesson learned" and you acquiesce to their wishes, not the other way around. Next time I bet you have all paperwork, though (that was NOT meant to be demeaning, I swear it, honest). Best of luck no matter how you run with it and sorry it happened. Drama and stress that sure wasn't needed.


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## squee (Aug 25, 2010)

Mustlovedragons said:


> I don't know, as I am not an attorney nor have I had this happen but it may be a case of "hard lesson learned" and you acquiesce to their wishes, not the other way around. Next time I bet you have all paperwork, though (that was NOT meant to be demeaning, I swear it, honest). Best of luck no matter how you run with it and sorry it happened. Drama and stress that sure wasn't needed.



Yeah, I probably shouldn't haven shooted without paperwork, but I already had to reschedule them once because my car broke down and they live an hour away from me. I felt bad and kind of too strapped for cash to lose a client. I also thought they were nice people.


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## g-fi (Aug 25, 2010)

Well, if this was me, I would politely but FIRMLY insist that they sign the standard contract, be clear that you don't want to offend them, but these are your working terms and that while you value their business, there are NO exceptions to the contract as stated.

Have you proofed any images with them or delivered any files? If it was me, I would not give them access to their images without the signed contract, but a faxed or scanned copy of the unaltered contract would be enough for me, I wouldn't insist on the hard copy back. I think that the scanned unaltered contract should be enough.

You say you don't want to lose them as clients, but do you need clients who are going to dictate your business terms to you? You did a free shoot for them, driving an hour to reach them, which was probably your initial mistake. People who get something for free, feel that they are *entitled* to EVERYTHING for free. 

You CAN afford to lose these people as clients if you're not making money off them, and unless you have some reason to believe they're going to purchase hundreds of dollars worth of prints, you stand to lose more by not putting your foot down and being firm about your business terms than if you cave in and do it their way. If you give some people an inch, they will take fifteen miles. 

Bottom line, tell them it's their choice, they can sign the releases unedited and purchase their prints, or they take their business elsewhere and you live and learn. Sounds harsh, but there are some people who will just walk all over you unless you stand up for yourself and be firm.


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## JG_Coleman (Aug 25, 2010)

Well, if you're looking for a strategic way to get them to sign the original releases, here's something you can try:

"Technically, I can't even sell the photos to you unless you relinquish commercial control to me.  So if you really feel strongly about not signing the original release form, I'm afraid I won't be able to sell you prints of the pet shoot.  Legally, I can't sell you prints until you relinquish commercial control of the photographs to me."

I don't do portrait photography, and I don't know if this is really even the case, but it sounds pretty convincing to me.  A nice, "hey I'm just obeying the rules" way to strong-arm them into signing the forms.


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## jewely (Aug 25, 2010)

Just wondering , so they scanned your pictures ,,, i was under the imperrision that photos where copywrited just by simply being that you took the photos ,, DONT Quote me on that cause im not sure thats true but if that is the case and they print a single one ,,, i think you would have legal action right ?


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## squee (Aug 25, 2010)

I wouldn't have a problem turning them away, but they took a stack of business cards from me to give to other dog owners in their puppy class. I have a good feeling that if I cross them, these would be the type of people to spread rumors about me. That is the _last_ thing I need.

This keeps sounding dirtier and dirtier. I think I may look up a local attorney who is familiar with photography laws.

Their proofs are up online and watermarked but that's the only access they have to them.

I mean, it's unclear to me if I have rights to these photos. On one hand they were taken on their private property, but on the other hand they didn't technically commission me because they didn't pay for the shoot.

My brain is going to explode.

GOD I'm just so PISSED. I took these photos and I spent about 45 minutes to an hour each editing them (35 came out) and they're trying to tell me what I can do with them??! Sometimes I hate people and fantasize about becoming a hermit and marrying my dog.


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## jewely (Aug 25, 2010)

so theese are the brown akita looking dogs in yout gallery ?


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## jewely (Aug 25, 2010)

Also are you realted to Ted Nugent by chance ?


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## squee (Aug 25, 2010)

jewely said:


> Also are you realted to Ted Nugent by chance ?



No I'm not.   I get that all the time, though. My family replies "Not THOSE Nugents!!"  :lmao:

Yes, those dogs.


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## jewely (Aug 26, 2010)

Dont know if this helps but it could Bert P. Krages Attorney at Law Photographer's Rights Page


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## JG_Coleman (Aug 26, 2010)

squee said:


> I think I may look up a local attorney who is familiar with photography laws.
> 
> Their proofs are up online and watermarked but that's the only access they have to them.
> 
> I mean, it's unclear to me if I have rights to these photos. On one hand they were taken on their private property, but on the other hand they didn't technically commission me because they didn't pay for the shoot.



Whoa... whoa... whoa... I really don't think you'll find a lawyer that's going to give you an overview of photography laws for free.

I'm telling you, man... just tell them that you can't sell prints of the photos to them until they relinquish commercial control to you.  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?

So don't bother with lawyers... there's no reason it needs to go that far.  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.

Don't be mean... just be firm.  "Hey, this is simply the way the business works. I really can't help you if you neglect to sign this industry-standard release form."  Catering to their every whim may just wind you up in even more of bind down the road... put your foot down professionally.  If they are reasonable people, they'll be understanding no matter what they ultimately choose to do.


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## squee (Aug 26, 2010)

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::


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## jewely (Aug 26, 2010)

sounds good to me but in the meantime i would remove them from your website


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## JG_Coleman (Aug 26, 2010)

squee said:


> 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."
> 
> ...


 
Sounds like the best course of action...  good luck.


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## KmH (Aug 26, 2010)

JG_Coleman said:


> 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*.


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## JG_Coleman (Aug 26, 2010)

KmH said:


> JG_Coleman said:
> 
> 
> > 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.
> ...



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.


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## squee (Aug 26, 2010)

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
> ...



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.


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## kundalini (Aug 26, 2010)

squee said:


> 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."
> 
> ...


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.


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## squee (Aug 26, 2010)

kundalini said:


> 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.


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## KmH (Aug 26, 2010)

JG_Coleman said:


> ....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.


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## njw1224 (Aug 28, 2010)

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.


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## DanEitreim (Aug 31, 2010)

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.


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## TeslaCoil (Oct 2, 2010)

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.


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## Flash Harry (Oct 3, 2010)

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


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## KmH (Oct 3, 2010)

TeslaCoil said:


> 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.


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## Rosshole (Oct 4, 2010)

KmH said:


> Animals have no legal rights.


 
Great Point!


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## Overread (Oct 4, 2010)

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)



Rosshole said:


> KmH said:
> 
> 
> > Animals have no legal rights.
> ...



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


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## Rosshole (Oct 4, 2010)

Overread said:


> 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.


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## Overread (Oct 4, 2010)

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


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## KmH (Oct 4, 2010)

Overread said:


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


Oh, hell no! You sue your car insurance company, and the place where you got the dog.


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