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Author Topic: Clients want printable full size files of my digital reproduction of their art  (Read 27177 times)

dgberg

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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.
« Last Edit: February 11, 2014, 10:04:35 am by Dan Berg »
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BenMm

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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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DeanChriss

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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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MarkM

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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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Conner999

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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.
« Last Edit: February 11, 2014, 03:00:52 pm by Conner999 »
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dgberg

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Some excellent ideas,thanks to all.

Malcolm Payne

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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.
« Last Edit: May 09, 2014, 09:20:59 am by Malcolm Payne »
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PeterAit

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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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Peter

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john beardsworth

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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
« Last Edit: May 09, 2014, 10:58:15 am by john beardsworth »
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Malcolm Payne

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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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Manoli

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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.

« Last Edit: May 09, 2014, 01:42:33 pm by Manoli »
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john beardsworth

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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
« Last Edit: May 09, 2014, 02:01:14 pm by john beardsworth »
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Malcolm Payne

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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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Malcolm Payne

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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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Isaac

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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.
« Last Edit: May 09, 2014, 05:51:20 pm by Isaac »
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john beardsworth

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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

Wayne Fox

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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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BradSmith

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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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PeterAit

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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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Peter

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Manoli

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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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