What would you do?

[RIDDLER STUDIOS]

Situation: I took photos for a "commercial" client and the following is an email exchange...

RIDDLER:
“Here are some photos from the weekend. If you find any photos you like or think you might use, just let me know the "photo-number" associated with the photo and I'll clean them up in photoshop later today. I have more photos to upload later, but thought this would be a good start for your review.
www.riddlerstudios.com/gallerylink” (not a real link)

Client: “These are GREAT! 1, 5, 19, 20, 25, 27, 28, 30, 31, 34, 48”

Now a month later, I'm being told the photos aren't what they needed and I'm not going to get paid?!?! Also, they have already used one of the photos in an ad which has been published!!!

- I'm seriously thinking about taking them to small claims court. Has anyone gone that route before?

- I'm pretty fired up!!! So, I'm venting through this posting.

[carrbowl]

I'm sorry for you John. I had this happen to me, but it was just a portrait session and I gave them a cd of the shots to look it. I learned even people you know from a church will take you to the cleaners. I would say you need to do something about this. If you belong to PPA, I would start there. IF you don't, I'd find a lawyer and get some advice.

[ndsimm]

What did the contract state? Were you given any funds up front? what was the expectation? If you have noting in writing, it may be hard, but this email exchange may help
Check with PPA if you are a member, if not, then small claims may be best IMHO

[CaptainTom]

You are entitled to be paid for an image that they have already used.

I don't understand how they feel they can get away with not paying you for it.
The others, if not used, are just the way it is with commercial images. A good contract is the only answer.

[carrbowl]

So, just for giggles, lets say there was no contract...lets say he just took the photos, put them on his website for the commercial guy to look at, the commercial guy downloads them or copies them from the website. Yes, a contract would have helped, but it is still a copyright issue isn't it? Does it make it any harder to prove really?

[RIDDLER STUDIOS]

A friend of mine told me I shouldn't "threaten" them with court ...but, what do you guys/gals think?


This notice is a request for payment of a photo used in advertising that was taken by RIDDLER STUDIOS for the amount of $500.00.

The amount calculated is based on the fact the photo was used in a magazine (format), ½ page ad (size), and 10,000 copies (distribution). If the above fee is not received by 13 March 09, this claim of payment for services rendered will be filed in small claims court. Thank you for your time and consideration concerning this matter.

[alamoshutterbug]

Originally Posted by RIDDLER STUDIOS

A friend of mine told me I shouldn't "threaten" them with court ...but, what do you guys/gals think?

Generally speaking, one should never threaten legal action unless they are willing, able, financially capable, and ready to proceed and even then, the only legal threats one should take seriously are from a lawyer.

[jgrindal]

First, let me tell your situation sucks, and I'm sorry you're in it.. I'll give you my opinion based on my career in purchasing (for heavy industrial equipment, so slightly different ball game).

If someone threatens me with civil action, they're immediately going to get a stonewall from me. Once court gets brought up, the whole world changes and there isn't anything that I can do to "help" you anymore. Now you're the enemy, and sadly, court is probably where it will go. Self-fulfilling prophecy.

I would send them a formal invoice with a letter that conveys the following:
1) they used your work, you appreciate their business
2) you apologize for the delay, but given the economic times, you would appreciate prompt payment
3) If they have any questions / problems, please notify you within 7 days of receipt.

Keep things friendly up front. Odds are someone broke the rules and is trying to figure out how to cover their can. If they can get you payment, they'll do it so that you don't kick it up the ladder / cause a big stink / get them in trouble. Then everyone goes hope happy.

If you don't get a response or payment, it's time to kick it up the ladder and engage a lawyer. That's when you send the "address my issue, or we'll take care of it the less fun way" letter.

[janikphoto]

Nobody has really discussed this:

Copyright protection allows you to get fair market value for this image. If you had actually registered the image with the copyright office, before the infringement took place, you could also get your lawyer's fees and $150,000 per copyright violation.

You are owed fair market value, which you seem to believe is $500. I agree, though. Don't immediately threaten suite. You need to send an invoice, hopefully with a copy of the ad included or a tear sheet.

[texkam]

Yes, I had to take someone to small claims court in Collin Co. Non-payment of graphic design work. It was a verbal agreement, but I had plenty of email correspondence. My client was claiming I was doing the work on spec. I would get paid if he made money off the venture. I proved he was hiring me to do “X” work for “X” price. I proved he was happy with the supplied work and was using some of it. I won, but was not awarded the full amount. Like you I was fired up. I got my pound of flesh.

I had the benefit of some help from a brother-in-law and a neighbor, both attorneys. The threatening lawyer's letter didn't work for me. The filing was relatively easy and not too expensive. Small claims court is suppose to be an avenue for the average Joe to represent themselves. I was told some judges even frown on attorneys in small claims court. Uncharacteristically, my judge was very formal and my client had an attorney (his friend). It took more than a year to get my day in court. I was told this is also not the norm. It is normal to be offered a last week, day, minute settlement. Before the hearing the judge will usually encourage the two parties to work out a settlement.

If your client simply claimed he didn't owe you any money because “ the photos aren't what they needed”, without a contract, you might be out of luck. But with usage, he can't claim that. If he used the word paid he's implying you would have gotten compensated.

I think you have a good case. Let us know what happens. - M

[ShaneKislack]

Even if they didn't use it, you are still owed your agreed rate. Unless there was gross incompetence like under/over exposure, ruined film, etc. Just because they changed their mind about how they want the feature to look doesn't mean you lose your pay.

Register copyright. You still have time to do this and make it worth while. Invoice them.

[texkam]

Yes, Shane is absolutely right. If you can prove you agreed on a rate you should be compensated whether they use anything or not.

[Aric C. Hoek]

Here's the address to a site that I follow daily. Perhaps she can be of help. http://www.photoattorney.com

[RIDDLER STUDIOS]

Thanks everyone for their comments and/or information. I'm working with the PPA and will keep you updated and of course the outcome.

RIDDLER