Luminous Landscape Forum
Equipment & Techniques => Pro Business Discussion => Topic started by: dgberg on February 11, 2014, 06:19:02 am
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For the last few years I have been digitally shooting acrylic and water color art for local artisans.
The plan was to keep the price for the shoot low and make the money on the prints when the artists start to move them.
My price to set up and shoot 1 piece was $30 discounted to $25 with 2 or more. (Could shoot 3 images an hour) CD with low rez JPEG was only $5.00 extra.
After consulting with the artists most of the prints would be in the 22 x 28 size range and could fit on standard 24 x 30" sheets. A great size to print and sell.
Now comes the problem. I have probably shot close to 50 of these with minimal print sales and they were small in size.
Recently I have had several of these artists contact me requesting full size 300 dpi files. Saying that the website they are putting these up on require it.
I am no dummy and instantly knew the reason. The sites have print fufillment and the reason I am getting no print sales.
So what to do. My first thought after spending an hour or two reading artists and photography copyright jargon was to retain the rights for all printing and only continue to give out the low rez jpeg's..
Put something in writing for all future shoots. What you get for the reproduction price. Example "Low rez jpeg image on cd"
Possibly deny the client the printable file as I now own the copyright to sell back to them? The problem with all this is they think now that they have paid me to shoot they own all the files which is not correct at all.
I set myself up for this by not having my ducks in a row at the start but never anticipated this large pot hole in the road.
One thought is to charge a $250.00 fee for the cd with printable files. Except that $250.00 is only a half dozen large prints.
Anyone one else run into the same problem.
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Copyright always belongs to you.
Estimate how many prints you could have sold of a particular piece of art. Charge that for the full res version and include with that the number and size of prints they are allowed to produce. On one hand you have no control of how many prints they make, on the other hand you were paid for the number you think they could have sold even if they don't.
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I've done some of this kind of work in the past but never had anyone ask for high rez files. Anyone who has ever had a wedding or other event photographed, or knows someone who has, knows that hiring a photographer does not give them ownership of the files produced. Your situation is the same. It's likely your clients are pretending they don't know this in an attempt to get printable files for $25 - $30. In the future I'd spell everything out in advance, as you've suggested. The current situation could be handled in a number of ways based on what you want/expect the future client relationship to be. At a minimum I'd honestly explain the situation from your perspective, including why the initial price was so low, and ask for a price you can live with for the high rez files.
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It's not certain from your description that you would actually own a copyright to the photos. Copyright protects originality — not hard work, not great equipment, not technical skill — originality. If you are reproducing art you are, by definition, minimizing your creative input and making a reproduction, not a new original work. The results is what is known as a slavish copy, which courts have found don't meet the minimum standard of creativity for copyright protection. You would not own the copyright any more than a service bureau would own a copyright to scans they made of your images or Kinkos would own a copyright to your xeroxs.
If you want to prevent your clients from using these photos you would be better off entering into a contractual agreement with them whereby you stipulate precisely how they may use the images. Whether or not you can do this, or course, depends on your market and competition. Honestly, if I were an artist looking to reproduce my work, I would find somebody who thinks of the job more as a service and would just hand me the files. I would be willing to pay more up front.
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I've done a touch of this and similar in the past and would probably offer two options for new clients:
1) Low cost shoot + 72dpi images for web + handcrafted prints by you, for those artists looking for a lower-volume, higher-end product.
2) Higher-cost shoot that sells a one-time 300 dpi file(s). They find their own print solutions. Any retouching or tweaks they want to do once they see their product in hardcopy from _____ vs. against the files you delivered is at an hrly rate of $x.
3) Anyone who buys #1 can, at any time, buy-up to option #2 using some formula that's fair.
4) The flip side to #3, is to also offer very small volume prints (priced accordingly) for#2 clients who decide to offer a one-off or limited run of bespoke prints vs. their normal online service for that 'special' image.
For existing ones with the "unusual" websites, explain the situation politely but firmly & offer them #3. The low-priced shoot was to deliver screen-ready images only, which they have - and are obviously happy with as they're ready to sell them in print.
Quite frankly once the type of client you're describing show their true colors after an agreement such as yours, there is no going back. Best to have them pay their fair exit toll and then let them go their merry way. Hell, they can't even lie well ;>
Many folks "love" symbiotic relationships with photogs - but for many that's only until it's time for them to fulfill their side. Then it's excuses, silence, or in your case a line of weak BS.
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Some excellent ideas,thanks to all.
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I've just fallen foul of essentially the same issue (in the UK).
I had a very successful and completely hassle-free working relationship with a client of six years. As with all my clients, she would commission me to photograph her artwork and produce limited-edition prints, for which I charged a flat-rate fee which included the original photography and processing and setting up the resultant file for print. Some of her colours were exceptionally difficult to match in print, and due to the amount of work necessary to optimise these to a high level, the fixed 'setup' fee rarely covered the full extent of the time and effort involved. In practice, this was never an issue overall as the print sales ultimately made up for any losses on the initial setup. The entire transaction was based on trust on both sides, and worked without a single quibble for those six years.
The question of the file ownership (as distinct from copyright on her paintings) simply never arose, and I was happy to provide her with suitable images for such other purposes as she required (posters, postcards etc), free of any further charge or restriction. Furthermore, I provided an number of other services such as a dedicated web page advertising her work, maintaining an edition number database, and other miscellaneous odds and ends, all at no direct charge. That may sound generous, but she was a very good client.
Unfortunately she died in January and her family, after initially saying they wanted print sales to continue in accordance with her wishes, have now decided they no longer wish me to be involved in either producing or selling the prints and have demanded the 'return' of all the files as "large format tiffs". The inescapable conclusion from their various emails is that they are intending to pass my files on to another printer to continue with the remainder of the edition runs. Not surprisingly, I am unhappy both at the loss of the future revenue stream and at the thought of someone else profiting from all my initial hard work.
I have written explaining the situation regarding the setup fee and that the files incorporate my own intellectual property in the form of the very considerable professional skill and expertise required to produce the final results and are therefore neither a straight copy of the original art nor theirs to 'return'. I have further offered them the option to purchase the files at a price to be agreed as some compensation for the lost revenue, but the only response has been a further demand for the files, totally ignoring both points.
Does anyone know the definitive situation under UK law (different from US copyright law), or have any other suggestions? As far as I have been able to determine, the question of copyright and ownership in the processed files in this situation is still a grey area in the UK and there has been no legal precedent set. Unfortunately I have neither the time nor the money at present to become a pioneer in setting one, though I'm reluctant to give in without a fight.
Frankly, life's just too short to bother with people like this, and if they'd make any sort of reasonable offer I'd happily be done with it all, but they apparently have no inclination to reach any sort of sensible compromise and their attitude now appears to have deteriorated into one of pure spite.
I would stress that there is no question of my breaching the copyright on the original artist's work in any way, and my other clients who are aware of the situation have all been both horrified and very supportive, which rather confirms that the primary issue is not mine.
I would be very grateful for any thoughts - despite my trying to be both reasonable and professional, the situation appears to escalate further with every email I receive, and I'd like to get it resolved as cleanly and as quickly as possible.
Many thanks in advance, and apologies for the long post.
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It's always best to settle these things ahead of time, but then again who wants to engage in legal/contractual mumbo-junmo with an artist who just wants a few pictures of her work?
The way I see it, in the absence of a written agreement there is validity to both claims. You say you were paid to take the photos, nothing more, and as long as you are willing to make prints they have no reason to complain. They say that paying you to take the photos entitles them to the files.
I would try to settle this amicably, explaining your position. If they insist, give them the unprocessed RAW files and let them chew on that!
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You use words like "commission", which sounds formal, and then "the entire transaction was based on trust". Any lawyer (I'm not one but had to study contract law as part of my ACA qualification) would ask how much of the arrangement was in writing?
A contract can be implied from 6 years of doing business (formal records of transactions?) and more recently from the relatives' agreement to continue the arrangement (was that in writing?). They may now be in breach of contract, and part of the "reasonable offer" would be damages for the loss of future revenues.
I'm sure you're right about not selling any more prints and not infringing their copyright.
Whether you should hand over the files without recompense would depend on the contract terms, if any can be discerned. As a contrast to your situation, a good friend is obliged to give his client the original raw files of all pictures made on their premises, and they have an unlimited right to make reproductions from those files. This requirement is explicitly stated in a contract, and I'd infer that those terms are needed precisely because he would not have been under any obligation to do so under IP or other UK law. This last point would seem to apply to you.
Obviously, a lawyer would give much more reliable advice.
John
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Thanks, both.
Peter: The problem with legal contracts with everything defined down to the last comma in advance is that it's a bit like a pre-nuptial agreement; probably a good idea in hindsight if a divorce is on the cards, otherwise perhaps more likely to start off on the wrong foot or at least with some resentment on one side or the other. And simply not (usually) necessary in most other professions or circumstances.
I've tried the amicable/reasonable approach to find a sensible compromise but they clearly don't want to play - as I said earlier, it now seems to have degenerated into pure spite on their part, even at the cost of some further sales commission to themselves. Your idea of giving them the RAW files to chew on is deliciously tempting, especially as some of them are multi-shot stitches! Unfortunately that would only further seriously inflame the situation and, in fairness, the original client had paid at least a nominal sum for the 'setup' part of the equation.
John: Perhaps 'commission' was an excessively formal term; the orders were usually along the lines of "I'd like you to photograph this painting and do me two prints, please", usually in person or occasionally by email. Further print orders were usually by phone or email as she found convenient. To that degree it was a 'gentleman's agreement' and based in trust; I didn't require a written order to do the work, and she didn't require prior written confirmation of what I was going to do for her. She also trusted me implicitly to print as necessary whenever I had an order for one of her prints via the website, and just to pass on the cheque and to invoice her for the print cost and associated commission when done. Written instructions simply weren't necessary, and the work would no doubt have carried on indefinitely while she was still alive - I have many emails saying how pleased she and her customers were with my work, and I was very flattered at her funeral to discover that she had been singing my praises in no small measure to anyone she knew.
I would need to check to be sure, but I think the first print I did for her directly was in August 2008 so just a few months under the full six years, if that is relevant.
Again, the discussions and instructions from her family to carry on with the print sales were largely in person or by phone, though I have one email which indirectly alludes to the progress of the project.
Neither my personal nor my business ethics would ever permit me to breach a client's copyright in any way, so that question simply doesn't arise - I've turned down jobs where that might have been an issue.
Your friend's situation is interesting, and I would be perfectly happy working under those terms if that was what was required. For what it's worth, I've never had an issue giving clients copies of files in the past, where they've wanted them for insurance against unforeseen disasters; but that again is an individual decision and a case of mutual trust. Those are all very good and long-standing clients, and I know there is no question of them taking their printing elsewhere. What leaves a very nasty taste in the current situation is the feeling that I'm being completely shafted, after six years of a formerly impeccable working relationship and doing my utmost to ensure things continued smoothly following my original client's demise.
Breach of Contract is an interesting thought, but I simply have neither the time nor the finances currently to pursue this through the courts - ultimately it isn't worth it in either recompense or mental stress. What I am really hoping for is to find something definitive I can point them to and say, 'that's the legal situation, take it or leave it' - a long-drawn out fight would simply distract from my other business and clients and, ultimately, the only people who win are the lawyers. However, thank you very much for your considered and very helpful post, particularly your inference regarding the contract terms, and I shall be interested to hear any further suggestions anyone may have.
Malcolm
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Malcolm,
Reading your post made my blood boil - and it doesn't do so easily ! I'm not a lawyer but have had more than reasonable exposure to UK law.
Just a few points for you to mull over. First and foremost you do not need a WRITTEN contract, a verbal agreement is VERY MUCH a contract in the UK. It appears that you most certainly did have an agreement and that agreement constituted a contract (should one need to put it to a litmus test). Add to which the contract was happily 'executed' on both sides for a number of years with no disagreement.
Don't be put off by the lack of written contract. The UK is the one jurisdiction where 'your word is your bond' - still. I'm not advocating legal moves but don't let yourself be intimidated.
Bottom line is that (and I stand to be corrected) under UK law you own the photographs, she owns the copyright to her work (*). End of story.
Edit:
(*) barring any explicit agreement to the contrary.
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6 years isn't relevant, Malcolm, I could have said "x" or "weeks" or anything. The main point is that you don't need a written contract for there to be a contractual relationship between you. It can be implied from evidence of her "offer" to do business and your "acceptance" of the deal by performing it, plus "consideration" (payment) for your doing so, and from other correspondence. So there is probably enough evidence of an ongoing contractual relationship. Nothing is explicitly said about the photos being hers, and they are the ones in breach.
I don't suggest breach of contract should be a course of action - more part of your negotiation of a reasonable amount. By introducing it (with some justification) you're effectively saying you deserve payment for the original photos and to compensate you for the damage you have suffered by their action. But hey, you say, I'll generously forget about the potential damages claim now I hear you are offering me £x....
My friend's example is relevant to your legal situation because it shows the UK photographer is under no general obligation to supply the originals - that's why his client inserted those clauses. Even then, he only complies to the letter by giving them around 2000 raw files almost every week. But he isn't required to supply the metadata that might help people find pictures in this pixel mountain or identify who or what is in them, and 99% of his pictures need global and local colour correction (for theatre and concert lights), noise reduction, cloning of wig lines etc etc. So much for fancy legal agreements! In your case, you don't even need to give them the raw files.
Are you under pressure from them? I'd be tempted to cross my arms, reassure them that you certainly won't infringe their copyright by selling further prints, and wait for them to offer a reasonable amount.
John
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Manoli,
Firstly, thank you and everyone else for your support and encouragement - I've just gone through an absolutely horrendous month for other, personal reasons, and this has just been the final straw, so any glimmer of hope is a lifeline at the moment.
Clearly, it is open to either party in a contract to terminate that contract at some point, if it does not naturally expire; the question becomes at what point and at what cost is that termination reasonable? If it is simply a question of a specified print order, then the contract clearly terminates once that order is fulfilled, but the expectation has always been that I would continue to produce prints of each edition of 100 until they were sold out; indeed, my original client had turned down in my favour several advances by a more local printer over the years to take over the work. For what it's worth, there are currently 22 of her images in print, with the remaining prints in the editions varying from 24 for the most popular to 95 for the most recent, so the potential for future work is significant.
My interpretation of the bottom line has always been the same as yours; that I own the photographs and the files themselves, and the client owns the copyright to the original images and therefore controls their reproduction. As I said, I have no wish or intention to reproduce those images in any form save by express instruction, and have already confirmed to them that I always have and always will fully respect their copyright.
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John,
Thank you again for your further advice. Your friend's work sounds very similar in many respects to my own, though whether his is legally an exact analogue of artwork photography for repro is still not entirely clear. It certainly confirms the general principle that a 'photographer for hire' in the UK owns the copyright in the actual photographs unless that copyright is expressly transferred by payment or contract. However, it has also been suggested, rightly or wrongly, that repro artwork photography is slightly different in that copyright in the actual photograph hinges on whether it is an exact copy or 'derivative work' as opposed to an original work in its own right. In the former case the photograph would be denied copyright protection, regardless of any skill or time spent in creating the image, whereas in the latter it would automatically acquire it. Hence the lack of clarity, and the same source suggested that this may still be a grey area under UK law that has not yet been fully resolved by the courts. Your friend's position would certainly be the more logical one, but the law is not always logical ...
I am under an extreme amount of pressure from the client's family as it happens, though no lawyers have been involved as yet. They have instructed me to remove the artist's images and offers for sale from my website, which I have done, and the only other response I get from them is flat, repeated demands to "return the disc (full sized tiff files)" and "return Mum's images off your hard drive (in large format)", despite my polite and careful explanation that there is no 'disc' to return and the only images on my hard drive are mine. And it's very hard to negotiate with someone who will neither listen nor negotiate in return, which ultimately only leaves two options.
It may be as you say simply a case of standing firm and calling their bluff, but the person I suspect may ultimately be behind all this has already shown on more than one occasion that his idea of negotiating or discussing anything is simply to bully the other party into submission, so that may prove difficult without some very solid ground on which to stand.
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… that may prove difficult without some very solid ground on which to stand.
I think you need to have an initial discussion with a lawyer and find-out the actual legal position, and the potential costs. Sorry.
It may be worth the expense if taking that action allows you to stop worrying about what might happen.
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I don't think copyright law is applicable here, though maybe they fear that you will try to sell copies? It might be worth reassuring them on that, if you've not already done so. Maybe offer to delete the files?
To me it's more about contract law, and isn't it crucial that the arrangement was always to create and sell prints and artwork, not supply digital images?
From what you say, I'd be tempted to let them make the next move. But you're only going to know if you're on solid ground if you get proper legal advice.
John
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have now decided they no longer wish me to be involved in either producing or selling the prints and have demanded the 'return' of all the files as "large format tiffs".
Sounds like time to visit with an attorney.
In my mind (and probably yours), the creation of the file was a production step in order to produce the desired product that was ordered by the client. It is not copyrightable but that doesn’t mean you don’t own it, it just means you can’t produce anything from it other than what is requested by the copyright holder. Unless specifically stated by contract or agreed to, I don’t see how it belongs to the client. You should be under no obligation to “return” anything, because it didn’t belong to the artist in the first place and was not what you were paid to produce.
But certainly a sticky situation, and challenging for the client because the work is probably no longer available to them to have another production facility to reproduce.
Certainly if an agreeable solution could be reached where they purchased those files from you it would be the best solution. Convincing them they don’t own them may be a challenge, but a direct letter from an attorney explaining the original artist contracted you to reproduce her work, not to create a file for reproduction. That file was created by you only to facilitate what was ordered.
Regarding the problem as originally posted by Dan, we get this all the time. We have many artists who ask us to copy their work, and our policy is all reproductions we get include the files. What they do with those is their business, and we charge enough that we don’t loose money. They have a choice on how far we will go to get a match to their original artwork, from a base fee which is just making sure it looks OK on the screen but no test print and not guaranteed to match, to as close as we can get it, which is the base fee plus an hourly fee plus a charge for each test print we need to make. If they order reproductions when they bring in the artwork, we discount the fees, but they still get the file. Many continue to use us to order reprints, others I think are posting them to sites that offer fulfillment.
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Malcolm,
If, sadly, you reach the point where you determine that you will give them files, then I agree with the suggestion made here already that you give them the unadjusted RAW files as shot by you. I think that any remotely rational interpretation that says that you owe them anything would NOT INCLUDE you owing them YOUR intellectual efforts or creativity in adjusting those files so that they print properly on any given paper.
Brad
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Sometimes it's best to be selfish - not in terms of money or your "rights," but in terms of what's best for your head. Give them the files and get on with more important things. Do you really want to spend a lot of time and mental energy on this? You may well be "right" in some sense, but so what?
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Malcolm,
I've re-read your two posts , more attentively this time, and without contradicting John's more detailed advice and experience in such matters, would suggest that there are a couple of fundamental points to your situation.
Firstly, the contract. You had a verbal agreement, an ad hoc arrangement,
“ along the lines of "I'd like you to photograph this painting and do me two prints, please", usually in person or occasionally by email...”
“ Written instructions simply weren't necessary, and the work would no doubt have carried on indefinitely while she was still alive “
The terms of this agreement were known to you and your client. There was no disagreement between you and a harmonious working relationship continued until her demise.
What is not entirely clear is whether or not your ad hoc arrangement ever constituted (1) an offer and (2) an acceptance of the offer – both integral to a 'contractual relationship'. Given that you received some 'consideration' for your work it could be argued that the agreement constituted a contract.
But if so, what were her and your obligations under the contract ?
Were you paid in full 'up front' or or were you to be compensated on a pay-as-you-go basis ?
Was she obliged to give you an order for 100 prints or was it an understanding ?
Was the 'consideration' inclusive of the 100 prints or are you still owed monies for your 'original' work ?
And so on..
“ Clearly, it is open to either party in a contract to terminate that contract at some point, if it does not naturally expire .. “
Well, no - it's not. If indeed a contract existed then it's not open to either party to breach the contract without agreement from both sides. Unfortunately, your ad hoc agreement (or contract) did 'naturally expire'. But in the absence of any written agreement it is debatable whether or not her children inherited her contractual rights and obligations – I suspect not.
In the absence of any written agreement to the contrary, I believe that any judge reviewing this case would apply the law, as if no contract existed. And therefore three salient points would be:
(1) As you say, the IP issue and who owns the files
It has also been suggested, rightly or wrongly, that repro artwork photography is slightly different in that copyright in the actual photograph hinges on whether it is an exact copy or 'derivative work' as opposed to an original work in its own right. In the former case the photograph would be denied copyright protection, regardless of any skill or time spent in creating the image, whereas in the latter it would automatically acquire it. Hence the lack of clarity
(2) But, notwithstanding an unfavourable decision in (1) above - have you received full and fair compensation in accordance with your original agreement ?
(3) Additionally, under English law , you have what is referred to as the doctrine of reasonable expectations – a legal principle that the provisions of a contract are to be interpreted according to how a reasonable person (untrained in law) would interpret them.
Finally,
I would suggest that you do not continue any written communication, other than to state your position, for fear that it could, inadvertently, prejudice you in court proceedings. Should you need to write, make sure you mark each e-mail and letter with the heading 'WITHOUT PREJUDICE' . This will prevent them from using any of your letters and emails in court, should it come to that.
So, as suggested above, once you've taken professional advice, cross your arms and wait for a reasonable offer. If they wish to go to the expense of taking you to court – let them. You'll probably enjoy the experience of defending yourself ( I did) – and there's no-one better to convince the judge of your own sincerity.
Good luck (or should I say break a leg)!
Manoli
ps
Just remembered - there's an extremely likeable (and intelligent) solicitor on this site, kikashi, (posts quite often) - perhaps send him a pm and ask him if he'd be so kind as to give you a quick opinion on the thread ..
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Thank you all for your further interest - your comments have all been very helpful and instructive.
Several of you have pointed out that my contract with the original client was in fact simply to reproduce her artwork as high-quality, limited edition prints and that any files created in that process were intermediate and incidental and formed no part of that contract. I had somehow overlooked that point in the narrower issue of ownership of the files themselves. It seems that this situation may well fall under contract law rather than copyright law, so I am particularly grateful for that suggestion and advice.
I have already advised the family unequivocally that I have no intention of infringing their copyright in the images in any way, so I don't think the issue is one of unauthorised reproduction; they clearly want to get hold of the files in order to have someone else print them, as evidenced by their demands for "large format" and "full resolution" tiffs.
Wayne: Your post sums it all up neatly, I think. Many (all?) of the original paintings have now been sold, and I suspect very few, if any, of those are available to be re-photographed so, without access to the files for reprints, the clients face the situation that further edition prints are no longer available. The family originally cited the "stress" (?) of print sales as the reason for their instruction to cease these sales, but by demanding the high-resolution files have clearly indicated that they intend to continue with these elsewhere, so that was merely an excuse. There was also the comment made by one of the family following my client's death that "This could be a little goldmine for us." (that is obviously hearsay, but does perhaps illustrate their attitude).
I do like your idea of the graduated reproduction fee structure for possible future use, though I am not sure how well that would work in the UK market. I do already offer clients the equivalent of your base fee on the rare occasions where they simply need a straight, unadjusted copy - the equivalent of a photocopy, if you will - but the goal is almost always as near a perfect reproduction of the artwork as is achievable, and that is usually what they get. Not infrequently, I've had artists mistake the print for their original at first sight, so I'm confident in the quality of my work; there has never been an issue until now with reprints going elsewhere, as my clients are more than happy with that work and I very much doubt they would find the same quality or service anywhere else.
PeterAit and Brad: The temptation just to give in and wash my hands of the whole thing is very strong, and that would certainly be better for my long-term stress levels and sanity. However, I think sometimes it is necessary to take a stand when one is clearly in the right; not for reasons of false pride or anything similar, simply that otherwise the bullies in life just get away with it again and are encouraged to continue in their path.
If I do ultimately have to throw in the towel for whatever reason, then perhaps providing the original RAW files as suggested might be one way to go, though I'm still somewhat resistant to that option at present.
Manoli: Thank you for your further detailed contribution and addition to John's earlier points.
I think it's quite clear that I did have a contract or contracts with my original client: she requested me over a period of some six years to produce reproduction prints of her original paintings ('the offer'), I produced those prints ('the acceptance') and invoiced her for the cost of that work ('the consideration').
Orders for new reproductions were usually verbal and in person - there may be the odd email or two where she said she had a new painting she wanted me to do, but mostly she would simply present me with a new painting when I delivered a set of prints to her. Payment was by invoice on completion of each order, usually when I delivered the first prints or any reprints.
There was no obligation on the client to order 100 prints of each edition; as is common, these were printed 'on demand', but the understanding was that I would continue to produce these until each edition ran out, and would also sell her work on commission via my website. As part of that work I kept a database of edition numbers and simply printed either when the client herself ordered more prints or as orders came in directly from customers via the website or by phone.
Re. your point (2), in terms of the prints themselves, I have received full and fair compensation in the form of invoiced payments for those sales. The reproduction and setup fee situation may be slightly less clear; I was paid the invoiced fee for that work in each case, but that was a flat-rate fee and did not necessarily cover the entirety of the work involved, multiple test prints for fine-tuning the image, etc., which was compensated for by subsequent print sales - a 'loss-leader', if you like.
I probably need to respond further to the client by Monday, but am keeping my powder dry for the moment to see what further advice might be offered over the weekend. As you suggest, any further communication will be limited to an objective statement of the facts. I have PM'd Kikashi as suggested, so am hoping he might also kindly find time and be willing to chip in before then.
Best,
Malcolm
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Malcolm,
Apologies I wrote that post in the early hours of the morning and was perhaps not clear in point (2). It should have read " have you received full and fair compensation in accordance with your original agreement - FOR ALL THE WORK ? "
Re. your point (2), in terms of the prints themselves, I have received full and fair compensation in the form of invoiced payments for those sales. The reproduction and setup fee situation may be slightly less clear ... a 'loss-leader', if you like.
But surely that is the key point - you're not disputing the print payments, but you haven't recd FULL payment for the agreed reproduction and setup fees etc, which were deferred ...
Hopefully (kikashi) will be able to give you a far more authoritative once over.
All best,
Manoli
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Me, I would offer them 2 options. Destroy the files or they pay you to produce the remainder of the print runs and then destroy the files.
You can't print and sell the images they can't print and sell your digital copies.
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Manoli: Thank you for the further clarification, but I had interpreted your original point as you intended, I think. The issue of the reproduction and setup fees may be one of interpretation; it cannot be disputed that I was paid the invoiced figure in full, however there was always an expectation that I would continue to produce prints until the edition(s) sold out.
Kikashi has very kindly sent me a PM and has requested that any further discussions be continued in that format, so I cannot comment further on his response at present. If he is happy for me to do so later, then I may be able to post a summary of his opinions or any further outcome in due course.
MrSmith: I agree with your conclusions, unfortunately they seem to have no intentions of negotiating or reaching any form of sensible compromise (I've tried). All my emails have been met with an uncompromising demand simply to "return" the files, and the whole thrust of their approach seems to be to freeze me out entirely so that they can hand the files over to another printer.
All I can add otherwise is that no-one here has contradicted the prevailing and strongly held opinion in this thread that ownership of the processed files, and most probably also the original RAW files, is firmly mine.
Thank you all for your thoughts and encouragement.
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they have no ownership or reproduction rights to your raws or tiffs, they own the moral rights to the work and copyright of the original works but not the intellectual property contained by your raws/tiffs. you hold all the aces, i wouldn’t budge an inch. good luck.
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Kikashi has very kindly sent me a PM and has requested that any further discussions be continued in that format, so I cannot comment further on his response at present. If he is happy for me to do so later, then I may be able to post a summary of his opinions or any further outcome in due course.
It'll probably take him a few days to recover from laughing at M'Lud Beardsworth's learned contributions! But it would be interesting to get some of his thoughts.
"I probably need to respond further to the client by Monday"
Why rush? Bullies don't like being stalled, and you probably have little to gain by being communicative. Hold your ground.
John
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Hopefully Kikashi will be happy for me to post a summary of his opinions and/or the eventual outcome when this is concluded, which might assist any others who find themselves in this position, but that is his prerogative and I don't wish to infringe that in any respect.
The client has already berated me for taking five days to reply to their previous email, when this was in fact only four days and over the long May bank holiday weekend. I don't usually work weekends anyway, except rarely for critically urgent jobs, and I had actually taken an additional extra day off that weekend as I had worked right through the previous one on a complex and time-critical job for an exhibition opening on May 3rd. It is clear that they are using any excuse to stack up points against me, and I'd rather not provide them with any more opportunities than necessary. And they accuse me of making things personal and not professional! (Quite untrue - I have attempted to remain polite and professional in all communications.)
Equally I don't wish to say anything to them that might be either prejudicial or factually incorrect.
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Ah, nothing brings out family like a death & $$$.
The family is caught by the short hairs - the original paintings are sold and can't be re-photo'd and the only existing printable files are your intellectual property. To secure that "..goldmine.." and get all those high-volume nasty cards & prints outsourced from "We Print Cheap Inc.", they NEED to get those files.
Being greedy idiots (who likely spend as much time fighting one another over their mother's estate), they're resorting to what has always worked for them - bullying. Trying to reason with them will be fruitless.
That said, if you EVER reach an agreement with them, even if it's handing over files gratis, it will need to be under the umbrella of an ironclad legal agreement that protects you from any liability.
Otherwise, if their 3rd party printer ever has an issue, or one of them makes a bad decision (e.g. cheapest possible paper, etc) odds are it will somehow come back to you and your repro work. If you wash your hands of these morons you need to ensure there is never any further aggravation because once the files are out of your hands...
In other words, you will need an attorney now regardless - unless they just go away, which is doubtful as they see an annuity for them sitting on your harddrives.
My worthless C$0.02?
Secure all the files and contact an attorney and inform same of the situation and what solutions you'd be amicable to. Then set your email system to auto-reply to any from the family with the contact info for your attorney. Have your phone, assuming you have caller ID, screen any calls. You need to step away from the discussions, show them your serious and, quite frankly, that you KNOW you're in the right.
Personally, I'd mentally apologize to their mother and sell the files for $$$$$$ and a legal agreement 20 pages thick.
You could look at a licensing agreement, but with the other party so irrational, I can't see it going well. Even if they come back all nice-nice and rational, their initial communications (to me) show what their normal behaviour is like - and what they'd fall back to if ever an issue. Thus you'd need to get 3rd parties involved and the family won't like the required costs. Also, if you print for them it will be 101 calls of "bad quality" with every run, debates about costs ,etc. If they outsource printing and pay you a royalty, do you really want your name associated with some lowest-bidder slap-happy print work?
Their mother would be so proud...
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Heart-warming, isn't it?
Just a brief interim update for anyone who has been wondering how this is going, mindful of the fact that this is a publically-accessible forum and that I have posted under my full name and would prefer to keep at least a few cards in reserve until the matter is definitely concluded.
Kikashi has been exceptionally helpful and is happy for me to post his response in more detail, which I shall do at a later date; suffice it to say for the moment that nothing he has said contradicts either my own or any of the other views expressed here. I emailed the client's family on Wednesday evening advising them of his opinion and have heard nothing further, so I hope they have seen sense at last.
For what it's worth, some measure of the regard in which the original client held me was that she said a year or so ago that she was going to leave me one of her original paintings in her will. Sadly that didn't happen - or if it did, no-one has told me about it - so she most probably either subsequently forgot or else never got around to it. Nevertheless, a fantastic endorsement of my work and of our working relationship, and rather a pity as otherwise it would probably have made the point rather forcibly to her family.
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Malcolm,
If, sadly, you reach the point where you determine that you will give them files, then I agree with the suggestion made here already that you give them the unadjusted RAW files as shot by you. I think that any remotely rational interpretation that says that you owe them anything would NOT INCLUDE you owing them YOUR intellectual efforts or creativity in adjusting those files so that they print properly on any given paper.
Brad
I like this solution, since the family member sounds like an unthinking bulldog about the whole thing. Just imagine him stumbling through the expensive process of trying to get decent prints. That would be sweet justice, since it looks very bad that the family will be a source of any kind of income for you in the future.
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For what it's worth, some measure of the regard in which the original client held me was that she said a year or so ago that she was going to leave me one of her original paintings in her will. Sadly that didn't happen - or if it did, no-one has told me about it - so she most probably either subsequently forgot or else never got around to it.
I assume you know that if you are in the will but the family has somehow pressured the lawyer to not tell you, that is highly unethical and it might be worth finding the lawyer and asking a pointed question. If the family is as money-hungry as they seem, this seems like a possibility.
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I like this solution, since the family member sounds like an unthinking bulldog about the whole thing. Just imagine him stumbling through the expensive process of trying to get decent prints. That would be sweet justice, since it looks very bad that the family will be a source of any kind of income for you in the future.
I have a better idea. "Process" the raw files and screw them up in various ways, add some dust spots, mess up the color balance, etc. Then give the family the TIFFs and say they are the originals. Bwaa ha ha!
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Yeah, I considered that, too, but bring an expert into court to examine those files and it won't be pretty for the person who has been proven pretty easily to just have committed fraud. Just give back the original files and be done with it. The family member(s) who think that reproducing the same quality their Mom was used too will be in for a very expensive and unecessary education in art reproduction.
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I assume you know that if you are in the will but the family has somehow pressured the lawyer to not tell you, that is highly unethical and it might be worth finding the lawyer and asking a pointed question. If the family is as money-hungry as they seem, this seems like a possibility.
They would have to be quite spectacularly dumb to do that - I have no hard evidence that she did change her will to that effect and I think it more probable that she either simply forgot or never got around to it - she was then in her 80s and had been suffering from ill health for some while. And it was hardly something that I could remind her about subsequently! Still, it was a nice compliment at the time.
It was very sad, though, just how soon after her death all the remaining paintings were removed and passed out amongst the family (and I am alleging nothing by that comment other than that it was such a shame to see the house so thoroughly stripped of all her personality).
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Yeah, I considered that, too, but bring an expert into court to examine those files and it won't be pretty for the person who has been proven pretty easily to just have committed fraud. Just give back the original files and be done with it. The family member(s) who think that reproducing the same quality their Mom was used too will be in for a very expensive and unecessary education in art reproduction.
The advice I have is that the family have no rights to the files, period.
Under other circumstances, I agree that any tampering with the files themselves would be on potentially dangerous ground and arguably unethical. However, there would be no need. Consider amongst other things that I use a Nikon; and Nikon (helpfully in this instance!) encrypt the white balance in their RAW files, I believe. Furthermore, that most, if not all of these paintings were photographed with polarizing filters on the camera and the lights, with in-house custom-built camera profiles to correct for each specific combination of filters, lighting and sensor characteristics. And, finally, that the larger paintings were all photographed in sections and would need to be stitched again and any defects in the original paintings then retouched.
Most people who have never attempted it think that high-quality art reproduction is simple. It isn't.
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Yeah, I considered that, too, but bring an expert into court to examine those files and it won't be pretty for the person who has been proven pretty easily to just have committed fraud. Just give back the original files and be done with it. The family member(s) who think that reproducing the same quality their Mom was used too will be in for a very expensive and unecessary education in art reproduction.
IT WAS A JOKE.
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The advice I have is that the family have no rights to the files, period.
Malcolm,
A few parallels here perhaps ?
http://www.ppa.com/ppa-today-blog/inspiration/walmart-files-suit-against-pho.php?utm_source=click_thru
Best
M
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For what it's worth, some measure of the regard in which the original client held me was that she said a year or so ago that she was going to leave me one of her original paintings in her will. Sadly that didn't happen - or if it did, no-one has told me about it
Once probate has been granted, the will becomes available for public viewing, so you can check on request whether the executors have obeyed her wishes.
Jeremy
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Malcolm,
A few parallels here perhaps ?
http://www.ppa.com/ppa-today-blog/inspiration/walmart-files-suit-against-pho.php?utm_source=click_thru
Best
M
I saw that, thank you; interesting parallels.
No further response from the client since my email on Wednesday last week, until today when they returned signed CoA's relating to earlier print sales, for forwarding to the purchasers. Included with the certificates was a covering note, with just one reference to the files: " ... and look forward to receiving Mum's images on disc."
I had made it very clear in my last email that I had received legal advice to the effect that they had no rights to the files, so someone either still isn't listening or doesn't understand the meaning of the word 'No.' I'm inclined for the moment simply to ignore it rather than reiterate my previous statement. The returned certificates have now tied up the last of the loose ends, so hopefully it will now all go away.
Jeremy: Thank you for the further note on public accessibility of the will, it might be interesting in any case to look that up if I can do so without too much hassle.
I'll update again in a week or so or with any further developments meanwhile.
Thanks to all.
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Any news, Malcolm?
Jeremy
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I haven't posted an update before now, as I had been leaving things for a few weeks to settle down in case the clients were brewing up anything further and unpleasant following their last communication. Having previously conveyed Jeremy's expert advice to them, I am happy to report that it has now been three weeks since their last contact, even though they still stated almost as a throw-away line in that letter that they were looking forward to receiving "their" images back on disc. Hopefully I can perhaps allow myself to be cautiously optimistic that this matter might now have reached a favourable conclusion.
I am extremely grateful to Jeremy for his freely-given advice on this situation; with the caveat that he wishes me to include that his primary expertise lies in another field, he has derived from first principles the conclusion that confirms my rights to the files. He was also kind enough to run the situation past another colleague in Chambers with more knowledge in this field, whose thoughts on the matter happily coincide exactly with his own.
Jeremy has given his permission for me to quote him directly, so I am now happy to post his comments below in the hope that these might assist anyone else who finds themselves in a similar position:
"There are two aspects. So far as copyright is concerned, he's in little doubt that while copyright in the artwork vests in the artist (and now in her estate), copyright in your images of her artwork vests in you. Her copyright may limit the extent to which you are able to use yours, of course, in that it would be at best unwise of you to produce and sell prints without her (administrator's / executor's) consent. On that basis, the family's demand for the "return" of the digital files is unreasonable and invalid: they have no rights to them.
The contractual position is a little more complex, depending on whether there can be said to have been separate contracts for each print or an overarching contract for the taking of the photographs and the provision of up to 100 prints. Logically, the latter is much more likely, particularly given the amount of work put in initially, before any prints were made. You probably have a case against the estate for breach of contract."
Once again, my most sincere thanks to everyone who has contributed to this thread for their support and advice through what has been a very difficult and stressful time.
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That's good - it was quite a cliffhanger that you'd left us on. Let's hope the whole problem just fades away.
Particularly amused that the lawyers also mentioned breach of contract!
John
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Yes, apologies to everyone for the protracted cliff-hanger but, as I said, they'd repeated their demand for the files in their last letter, albeit perhaps less aggressively than before, and I didn't want to post an early update saying everything was now OK then have to retract if something else nasty subsequently arrived in the post. I haven't responded in any form to that letter, so hopefully as you say the whole thing will now fade away.
The breach of contract issue is an interesting one too; I'm no more litigious than I absolutely have to be, but it's a useful shot to have in the locker should it prove necessary. I might also look up the will sometime, more out of curiosity than anything else as I'm inclined to believe the omission was probably more cock-up than conspiracy. Still, it was a nice thought at the time.
Anyway, hopefully the thread may be of value to anyone else who finds themselves caught in the same position and can profit from my unfortunate experience. If nothing else, there have been some amusing posts and suggestions along the way!
Malcolm
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Anyway, hopefully the thread may be of value to anyone else who finds themselves caught in the same position and can profit from my unfortunate experience. If nothing else, there have been some amusing posts and suggestions along the way!
I was reluctant to post in this thread because I was unsure of the impact of UK Copyright Law...but, in the USA there is a guiding principle of original copyright and derivative copyrights.
Clearly, the original copyright owner has control over the exploitation of their copyrighted works. But, when a "copy" is made (with the authorization of the original copyright owner) things change...an authorized copy of a copyrighted work can transcend the original copyrighted work with additions and changes that turn into a derivative copyright. What this means (at least in the US) is that a legitimate copy of an original work can have additions and enhancements that have, on their own, a separate and distinguishable copyright.
While a "derivative copyright" can not migrate "upstream" (which means making additions and enhancements don't propagate upstream to the original works), the work done on an original work can garner downstream copyrights on those changes and enhancements made AFTER the original copyright.
In the past, this has been a tricky subject...some digital artists have tried to strong-arm certain copyrights for post production. In the past though, it's been pretty well held that it's the original copyrighted work that prevails. However, the original copyrighted owner can not claim post production ownership that is downstream of the original work.
The bottom line in a case like this is that while the original owner can control the use of the original copyrighted work, they can NOT control the post processing work that was added to alter or enhance the original work.
So, at best the copyright owner can get the original scans minus any alterations or changes made after the original scan–which represents the original works.
It's a fine line, but clearly a line in the sand. My only concern is how this sort of derivative works might be handled outside of the USA.
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I was reluctant to post in this thread because I was unsure of the impact of UK Copyright Law...but, in the USA there is a guiding principle of original copyright and derivative copyrights.
That's very interesting, Jeff. It's perfectly possible that there are similar principles in English copyright law (I'm wary of writing "UK" in this context, rather than English, as Scottish law is in some areas very different from that in England and Wales).
Certainly there could be an analogy with property rights in human bodies: a body or part thereof is not capable of constituting property (that is, no-one can "own" it) unless it has been treated in some way with expertise and skill, thus imbuing it with characteristics of property.
As I told Malcolm, my expertise in law lies elsewhere and anyone wanting to become embroiled in legal arguments would be well advised to talk to a lawyer who fully understands these issues.
Jeremy
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Just a quick note which I hope will finally wrap this up for good now, as it has now been over four weeks since I last heard from the client, so hopefully that's an end of it all. Jeremy's main expertise in law may well lie elsewhere as he says, but it seems his very helpful and considered advice was sufficient to persuade the client not to continue with their claims in this instance.
I also found Jeremy's 'human body' analogy very interesting and logical!
Thank you also Jeff, for your further detailed explanation of the copyright situation in the USA. That all seems perfectly clear, the only potential grey area in the case of art reproduction being where the first generation photograph or scan of the original artwork has had significant professional expertise and skill applied to enhance that but with the intention of producing as accurate a reproduction of the original in print as possible. One for the lawyers to chew on, I think (though hopefully not mine!).
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You are photographing THEIR art. You may own copyright to the images but it is nothing you can really enforce if it ends up in court.
Charge enough to make your COPY WORK pay and forget the prints.
All you are doing is copying the original work of someone else. Check the copyright registration information and you might see things a bit differently. They are creators, you are a copier.
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You are photographing THEIR art. You may own copyright to the images but it is nothing you can really enforce if it ends up in court.
Sorry, but you are missing the (legal) point. I suggest you read up on your local version of the Copyright law, especially the sections that pertain to making copies of existing art in commision. In short, the Copyright (the right to produce copies) of the original work of art remains with the author, unless the right was transferred. They can commission someone else to create a copy, and that party would then not violate their copyright by doing so at their request.
The original author commissioned the OP to make a (paper) reproduction, which still leaves the copyright with the original author. The OP was only paid for his service (which allowed him to own/hire/use equipment, materials, and use his skills to efficiently make multiple outputs as ordered, for a reasonable cost).
All materials used by the OP in the process to make that (paper) copy for the client remain property of the OP, including his studio lighting, his camera, his colorchecker, his intermediate file, his computer, his printer. In fact, the reproduction process used, could itself be protected by copyright as well (think about the recent Amazon patent on photographing against a seamless white background).
They are creators, you are a copier.
Exactly. They are and remain owners of the right to produce copies, the OP was allowed to produce such copy to their specifications and was reimbursed for his service. Period.
They can commission him again to make more copies should they wish to, and the OP would be able to do that efficiently because he still owns the materials/equipment/skill to do so, but they could also commission someone else (which would create other consequences for them, e.g. a breach of a verbal contract which was part of the cost calculation per copy).
Cheers,
Bart
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You are photographing THEIR art. You may own copyright to the images but it is nothing you can really enforce if it ends up in court.
Charge enough to make your COPY WORK pay and forget the prints.
All you are doing is copying the original work of someone else. Check the copyright registration information and you might see things a bit differently. They are creators, you are a copier.
If you had taken the trouble to read the whole thread before posting, old chap, and to have given some thought to the issues Malcolm raised, you might - just might - have avoided making a post that contributed nothing save to disclose your ignorance.
Jeremy
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It's not certain from your description that you would actually own a copyright to the photos. Copyright protects originality — not hard work, not great equipment, not technical skill — originality. If you are reproducing art you are, by definition, minimizing your creative input and making a reproduction, not a new original work. The results is what is known as a slavish copy, which courts have found don't meet the minimum standard of creativity for copyright protection. You would not own the copyright any more than a service bureau would own a copyright to scans they made of your images or Kinkos would own a copyright to your xeroxs.
If you want to prevent your clients from using these photos you would be better off entering into a contractual agreement with them whereby you stipulate precisely how they may use the images. Whether or not you can do this, or course, depends on your market and competition. Honestly, if I were an artist looking to reproduce my work, I would find somebody who thinks of the job more as a service and would just hand me the files. I would be willing to pay more up front.
Yes, and some kind of profit-sharing would be in order.
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Malcolm
I have quite a bit of experience with this as I run a dedicated fine art print studio as well as a professional photography business. I have given this a lot of thought over the last year. As I have run in to issues in the past. I have now decided to differentiate between the digital capture (for example the image with absolutely no post production work whatsoever) and the finished print file, which I class as a master print file. The master print file is proprietary as this is my skilled work to create a high quality print. This is never offered for sale to the client. This remains my property and will only be used if the client uses my print service. If the client requests a high resolution file to make prints elsewhere then I charge an agreed sum for supplying the file but they will only receive an unedited conversion of the original raw file. This way they are free to use any cheap print service they like but they will not benefit from the highly skilled work that I do in producing a fine art print. Usually when they realize that the prints are not very good from cheaper printers they most often come back to me to produce high quality prints in the future ;-) I think this business model now serves me well and protects my business interests without getting in to arguments with artists over copyright! Perhaps this is an approach that might suit your business going forward.
Best regards
John
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John,
Thank you for taking the time to add your considered thoughts, which pretty much accord with my own, I think. I do have a couple of questions about the specificities of your approach:
1) Do you advertise the 'digital capture' fee as effectively a traditional setup charge, and is that sufficient to cover the necessary post-production work to arrive at your master print file? If not, how do you recoup that additional time?
2) Do your clients clearly understand that any file they purchase for printing elsewhere is simply an unedited, basic conversion of the original RAW file, or do they equate this with the finished product (the print-ready master file)? How do you explain the difference?
Unfortunately, all too many clients, at least those uneducated in the reproduction process, take the view that anything they pay in terms of a 'setup' charge entitles them to ownership of the finished file to do with as they wish. It doesn't help when other businesses, such as the husband and wife team that recently emailed one of my clients aggressively pushing their 'giclée print service' (and annoyed him considerably in so doing), and who are running this in tandem with another dozen or so only very loosely-related services, advertise ludicrously and unsustainably low 'digital mastering' charges and specifically include the master file at no additional cost.
I would also be grateful for any further thoughts you may have on the subject.
There is a further footnote to the original issue, in that last week I happened to be in the town where my former client lived, and out of curiosity popped into the local bookshop that used to sell her prints. Sure enough, the remaining original stock of my prints was still on sale, along with several new images that were recognisably hers but that I hadn't seen before. On the back of these was a CoA identifying a local print shop that had for years been trying unsuccessfully to take over my client's work, and whom I strongly suspected at the time were behind her daughter's demand for my master files. It appears that, when I refused to hand them over, she had given them some previously-unpublished originals to photograph and print instead. A couple of the new ones were superficially acceptable, though I didn't have chance to examine them in detail and I haven't seen the originals to know how accurate the reproduction might be, but the others were of very poor technical quality. It seems her daughter cares more about keeping me out of the loop than she does about diluting the brand, which is a real shame after all the effort I put into achieving absolutely the best possible reproduction. It does however wholly vindicate my determination to retain control of my master files, if any further reason were needed.
Coincidentally, I have just been independently recommended by two of my existing clients to an artist who has recently had some giclée prints done that she wasn't happy with. I was amused to discover that she had used the same printer that my deceased client's daughter is now using ... Thankfully, some artists at least are savvy enough to know the difference. The difficulty lies in educating those others who have never seen a really good print, or who simply don't care.
Kind regards,
Malcolm
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A large part of my printshop business is fine art reproductions and have encountered the "fine Art America" phenomenon as well.
I have been careful to stress that it was a setup fee and we operated under the portrait session model.
Clients could always purchase the files for an additional fee which echoes the traditional portrait session model.
It was simpler in the film (4x5) era as that was a significant fee and the drum scan/ proof was separate and equally expensive.