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Author Topic: Clients want printable full size files of my digital reproduction of their art  (Read 27176 times)

Malcolm Payne

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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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Manoli

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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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MrSmith

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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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Malcolm Payne

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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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MrSmith

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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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john beardsworth

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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

Malcolm Payne

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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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Conner999

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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...

  
« Last Edit: May 17, 2014, 10:38:31 am by Conner999 »
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Malcolm Payne

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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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Benny Profane

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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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PeterAit

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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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Peter

"Nothing spoils fun like finding out it builds character." -- Calvin (and Hobbes)

PeterAit

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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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Peter

"Nothing spoils fun like finding out it builds character." -- Calvin (and Hobbes)

Benny Profane

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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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Malcolm Payne

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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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Malcolm Payne

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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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PeterAit

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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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Peter

"Nothing spoils fun like finding out it builds character." -- Calvin (and Hobbes)

Manoli

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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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Jeremy Roussak

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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 Payne

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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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Jeremy Roussak

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Any news, Malcolm?

Jeremy
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