gotta love phone calls like this

dogwood

So I shot some web catalog images a couple of months ago for a local boutique and we agreed in advance on a fee and that the images were for their website only. Any additional usage, I told the boutique owner, such as advertising, would require an additional usage fee.

They decided to use one of the photos in a color, 1/3 page ad for a magazine with a circulation of 25,000 (the ad space is worth $1400 according to the mag rate sheet). The photo has already run and the boutique owner wanted to know how much the usage fee would be (I believe he phrased it, "Let me know the damage." )

I did a quick pricing rate search online and the typical usage fee for a 1/4 page color ad (smaller than a 1/3 a page, of course) for a magazine with this circulation is between $300-$600. Okay, so I actually really like this client (hey-- it's a swimwear boutique :wink) so I cut them a deal and invoiced them $250.

That's when the phone call came-- he was shocked and wanted to pay me only $50. I gently reminded him that the photo had already run and perhaps we should have discussed the fee before hand. Of course I didn't mention that I could sue him for copyright infringement and collect three times my fee since the photo ran without my permission. Don't want to burn bridges.

The phone call basically ended with the guy telling me he would pay my fee, but in the future he was planning to hire an amateur photographer so it would be cheaper.

Just want to run this past the forum-- did I handle this situation alright? Any tips for how you would have handled it?

Angelo

I'm assuming you provided a hi-res file originally?

Art Scott

yes you handled it very well and professionally. You might show him the full cost and show your price as a discount because you enjoyed working with them.

However in the future you need not even talk with them unless thru your lawyer since the client knew he had done wrong in the first place.....Keep an eye on future issues if he has any other files of yours they may wind up in ads as well.


If he can live with non pro quality from just anyone with a cam then I would bid him great success and ado...........
We use the term amateur very loosely any more...it use to have a sort of reverence to it meaning doing something for the love of doing it....rather than just for the sake of money........but now an amateur is any person that has a cam.......A true amateur would probably turn him down or price it justas you did and then give a tiny break for now doing it full time.......
Or his friends kid will do it jsut cause he can tell his school buds what he did and got paid 50 bucks for it man.......

Nikolai

I think you did what you were supposed to do.
I only wonder why did you provide him with the hires images if the original job was for the website only...
The whole thing reminds me of the famous "how dared you to move your pictures I was hotlinking to from my website" incident...

dogwood

Angelo wrote:

I'm assuming you provided a hi-res file originally?

Yes-- I provided a CD of the hi-res files.

But point well taken-- provide web files only for future jobs like this since they're web catalog shoots. That way they'd have to contact me for print res. I knew I would learn something by posting here.

Thanks guys!

Angelo

dogwood wrote:

But point well taken-- provide web files only for future jobs like this

and don't fret about losing this client. better that he move on respecting you as a professional than you steaming over this forever.

somehow I bet he'll come knocking again


.

Sam

Pete,

This will be shorter than my first reply. The computer crashed.

I took a quick look at your girlie photos, and gotta say, Yowzer...they'r darn good!

I was wondering if you charged him too little, or may be a lot in his mind. If small amount he may feel the added $250.00 was too high compared to the whole shoot, or the opposite if you charged him what he though was allot he may feel like hey I just got through paying allot a cowboy buck-aroos and now he wants more?

What I would do is send hem a letter simply saying it would have been better if you and he had discussed other usage options and fees prior to the shoot. Explain that the normal charge for the type of advertising he used the image for is between $300.00, and $600.00 and that you thought you were giving him a discount by charging below the low end rate. Explain that you really liked working with him, and would like to continue to work with him, and that he indicated he liked your work. Now it looks like you both might loose out.

Reword accordingly, but thats the idea.

Now if he tries an armature and it doesn't work out for him you left the door open for him to come back to you.

Sam

Photog4Christ

Pete:

I looked at your site and all I have to say is... Tell him that if he doesn't like $250, then you can charge him more!

Angelo

Sam wrote:

...What I would do is send hem a letter simply saying it would have been better if you and he had discussed other usage options and fees prior to the shoot. Explain that the normal charge for the type of advertising he used the image for is between $300.00, and $600.00 and that you thought you were giving him a discount by charging below the low end rate. Explain that you really liked working with him, and would like to continue to work with him...

sage advice worth following!

.

theNOIZ

Angelo wrote:

and don't fret about losing this client. better that he move on respecting you as a professional than you steaming over this forever.

somehow I bet he'll come knocking again


.

I would predict that he will find an amateur photographer, be happy with the price, get burned by bad photos and then come back to you.

In my circle of friends, I know two guys that "fix" and "redo shots" that other photogs have managed to mess up in situations just like this.

Travis

Pete,

Was everything verbal or was there a contract in place? I'm guilty of this a lot and am just waiting to get burned before I start putting everything in writing! I think that you handled it well. I imagine that he will return when he sees the results coming from an "amature"; else, he's probably a client that you do not want to keep long term as this is bound to happen again.

Travis

Nikolai

theNOIZ wrote:

I would predict that he will find an amateur photographer, be happy with the price, get burned by bad photos and then come back to you.

A fellow IT guy shared the following with me today:
"We told them (i.e. sales/management) this cannot be done in two minutes and would take at least two months. They found a PHP guy who told them it would be all done in two days (apparently, in PHP universe *anything* can de done in two days). Nine months later we were contacted again and informed that nothing works and we have to fix this mess".
Ain't the world small?

dogwood

Travis wrote:

Was everything verbal or was there a contract in place? I'm guilty of this a lot and am just waiting to get burned before I start putting everything in writing!

Travis:

Fortunately, under U.S. copyright law, this kind of deal doesn't need to be in writing. It wasn't a work for hire situation, I own the copyright, and any usage requires my permission.

So don't worry about getting burned-- so far, the courts have been pretty consistent on this issue and it would be really rare for a client to refuse to settle out of court for such a blatant violation of copyright.

Guess what I'm saying is it's more important for the client to have the deal in writing in a situation like this than it is for me as the photographer.

ian408

Please remove the image or make it a link.

Thanks!

Sam

dogwood wrote:

Travis:

Fortunately, under U.S. copyright law, this kind of deal doesn't need to be in writing. It wasn't a work for hire situation, I own the copyright, and any usage requires my permission.

So don't worry about getting burned-- so far, the courts have been pretty consistent on this issue and it would be really rare for a client to refuse to settle out of court for such a blatant violation of copyright.

Guess what I'm saying is it's more important for the client to have the deal in writing in a situation like this than it is for me as the photographer.

I am going to disagree here. Let me play devils advocate. Work for hire or copyright issues are not in question. The question is the rights you granted / agreed to and the client paid for.

Me, client.
"Your honor, I told the photographer I would need the photos for my web site and other advertising. He said fine I'll make sure to give you high rez images then. He delivered the high rez images. Now he comes back and wants more money. That's not fair."

You are the businessman offering the services, it is incumbent on you to clarify (written contract) any terms you feel are important.

At this $ level I think more important than any legal issue is keeping the door open for the client to come back, and to not feed / exacerbate any negative feeling the client has.

Sam

snaptie2002

Sam wrote:

At this $ level I think more important than any legal issue is keeping the door open for the client to come back, and to not feed / exacerbate any negative feeling the client has.Sam

Spoken like a true businessman.......good shot Sam.

Marty

angevin1

One Question.

How did you find out about this magazine ad?

Angelo

angevin1 wrote:

One Question.

How did you find out about this magazine ad?

that's stated in OP

dogwood

ian408 wrote:

Please remove the image or make it a link.

Thanks!

This ad ran in a very exclusive high-end athletic/social club magazine in Portland. The ad space alone worth is $1400. What am I missing here? Are you objecting to the content? The photo looks to me like what I see on WWII planes. Why should I remove it?

dogwood

Sam wrote:

I am going to disagree here. Let me play devils advocate. Work for hire or copyright issues are not in question. The question is the rights you granted / agreed to and the client paid for.

Good point. I appreciate you pointing this out.

Travis

dogwood wrote:

Fortunately, under U.S. copyright law, this kind of deal doesn't need to be in writing. It wasn't a work for hire situation, I own the copyright, and any usage requires my permission.

Pete, do you register all of your images?

dogwood

Travis wrote:

Pete, do you register all of your images?

No, but copyright is automatic when you take the photo. You can collect more for infringement if you register, however.

Travis

dogwood wrote:

No, but copyright is automatic when you take the photo. You can collect more for infringement if you register, however.

The reason that I ask is that Photoshop User magazine has been running a series of columns on copyrighting photos over the last few months and it doesn't appear to be as clear cut as you being protected just because you clicked the shutter. I believe the authors of the column are both copyright lawyers. It has been interesting reading.

Nikolai

Travis wrote:

The reason that I ask is that Photoshop User magazine has been running a series of columns on copyrighting photos over the last few months and it doesn't appear to be as clear cut as you being protected just because you clicked the shutter. I believe the authors of the column are both copyright lawyers. It has been interesting reading.

Respectfully disagree. Copyright (=who is the author) stays with the photographer unless explicitely transferred. Usage rights (=who can use it), however, is a totally different and, as it's been mentioned many times, quite a vague issue (at least unless a written contract exists).

Travis

Nikolai wrote:

Respectfully disagree. Copyright (=who is the author) stays with the photographer unless explicitely transferred. Usage rights (=who can use it), however, is a totally different and, as it's been mentioned many times, quite a vague issue (at least unless a written contract exists).

I see the the difference in the terminology you are using Nik and I'm the first to admit that I am no lawyer and definitely not one to claim to be an expert on copyright law. I find it interesting though that a publication with a distribution like PU would provide valuable space within their magazine each month for a column on the subject of photo copyrights. I have to think that it not as clear cut as it sounds.

I'd be more than happy to fax the articles to you if you don't have them already to get your opinion. Just pm me with a number. I think you will find them interesting.

Nikolai

Travis wrote:

I see the the difference in the terminology you are using Nik and I'm the first to admit that I am no lawyer and definitely not one to claim to be an expert on copyright law. I find it interesting though that a publication with a distribution like PU would provide valuable space within their magazine each month for a column on the subject of photo copyrights. I have to think that it not as clear cut as it sounds.

I'd be more than happy to fax the articles to you if you don't have them already to get your opinion. Just pm me with a number. I think you will find them interesting.

Thanks, Travis, as a NAPP and PPA member I see them all the time. And yes, it's a whole "lawyer land" where there is no black and white. I mean, if you go to court... However, like with all extremely complex matters there are some rough simplifications that we can use in our day-to-day life. Lightspeed is 300,000 km/sec, US income tax is roughly 33% and copyright stays with the photographer.

Blaker

Originally Posted by Travis
Pete, do you register all of your images?

dogwood wrote:

No, but copyright is automatic when you take the photo. You can collect more for infringement if you register, however.

Copyright and Registration are two different things-
Unfortunately, merely owning the copyright to a photo will not prevent one from getting burned should the photo be used without their permission .
Sure you own the copyright, but unless your photo is registered with the copyright office you will be hard pressed to find a copyright attorney to take your case- in fact, I believe you can't even file your case of copyright infringement in federal court unless your photo is registered.

Of course, you can try to settle with the client on your own (which will often get you nowhere), or file in small claims court ( which often has a rather low upper limit for damages), but realistically you are not truly protected unless your photo is registered with the copyright office.
Even so, you will expend quite a bit of cash in the litigation process.

You should never transact business without a written contract detailing all terms and signed by both of you. At least then they cannot claim they misunderstood your terms, and you will be on more solid ground if you took it to small claims court.

(There have been several threads here containing links and information about the importance of registering your photographs, try searching threads or checking the stickies for this).

Angelo

Folks let's not let this become a debate on copyright. There are plenty of other threads already that deal with that issue.

This circumstance is not about copyright infringement. The OP had a contract with his client stipulating the allowable use.

.

Travis

Angelo wrote:

Folks let's not let this become a debate on copyright. There are plenty of other threads already that deal with that issue.

This circumstance is not about copyright infringement. The OP had a contract with his client stipulating the allowable use.

.

Well enough. Didn't mean to hijack the thread. Slapping hand now... lol

Blaker

Angelo wrote:

Folks let's not let this become a debate on copyright. There are plenty of other threads already that deal with that issue.

This circumstance is not about copyright infringement. The OP had a contract with his client stipulating the allowable use.

.

With all due respect Angelo, the OP came here asking how to deal with a photo usage that was outside of his agreement with the client ( which is in essence an infringement of his copyright), and has shown a very poor understanding of copyright, registration of copyright, and the importance of a written contract as evidenced in his post below:

Dogwood wrote:

Fortunately, under U.S. copyright law, this kind of deal doesn't need to be in writing. It wasn't a work for hire situation, I own the copyright, and any usage requires my permission.
So don't worry about getting burned-- so far, the courts have been pretty consistent on this issue and it would be really rare for a client to refuse to settle out of court for such a blatant violation of copyright.
Guess what I'm saying is it's more important for the client to have the deal in writing in a situation like this than it is for me as the photographer.

These issues all have great relevance to the OP's initial request as to how to deal with the situation he is in, and knowledge of how copyright registration and contracts work can help him in this and future situations.

ian408

dogwood wrote:

This ad ran in a very exclusive high-end athletic/social club magazine in Portland. The ad space alone worth is $1400. What am I missing here? Are you objecting to the content? The photo looks to me like what I see on WWII planes. Why should I remove it?

Was the ad created by you?