Who owns rights to digital photos - please help!

[GA3]

I paid someone to take digital photos and do a web set up for a vacation home rental I have. He is in the property management business and managed our vacation home for a while. The photos he took were put on HIS website where he set up a page for our home. After a few months, we decided to go off on our own and set up our own website. Originally I used the digital photos of MY home that he had taken and put them on my new website, but he then started threatening to charge me $250. per picture per month if I didn't take them down. To avoid any problems and because he still owes me money from previous renters, I took the pictures down and put up new ones that I took.

In the contract we signed it says:

"Set-up Fee: $500.00 set-up fee covers professional digital photography and website set-up."

No where in his contract does it say that pics are copyright and/or that he retains all rights to them.
Also, he is still using one of the pictures of my home that he took to promote his vacation rentals even though I am no longer doing business with him. Doesn't he have to have permission to use a photo of the interior of my house??

I'd really appreciate anyone who has legal knowledge of this, to give me their thoughts!

Thanks!

[Ronnoco]

I paid someone to take digital photos and do a web set up for a vacation home rental I have. He is in the property management business and managed our vacation home for a while. The photos he took were put on HIS website where he set up a page for our home. After a few months, we decided to go off on our own and set up our own website. Originally I used the digital photos of MY home that he had taken and put them on my new website, but he then started threatening to charge me $250. per picture per month if I didn't take them down. To avoid any problems and because he still owes me money from previous renters, I took the pictures down and put up new ones that I took.

In the contract we signed it says:

"Set-up Fee: $500.00 set-up fee covers professional digital photography and website set-up."

No where in his contract does it say that pics are copyright and/or that he retains all rights to them.
Also, he is still using one of the pictures of my home that he took to promote his vacation rentals even though I am no longer doing business with him. Doesn't he have to have permission to use a photo of the interior of my house??

I'd really appreciate anyone who has legal knowledge of this, to give me their thoughts!

Thanks!

The way the contract reads, you paid the web site set-up fee and his services in doing the professional photography. Nowhere have you quoted in the contract that you paid specifically for so many photos. Since legally under these conditions he still owns the photos no mention of copyright is necessary in the contract. Also photos are of course copyrighted whether there is any indication on the photo or in a contract or not. You could claim that the cost of the "professional photography" included the photos but without any mention of copyright in the contract, he still retains the rights.

As for using the picture of your home to promote his vacation rentals, is he suggesting that your home is available for rent? If he is and that is not the case then it probably fits the definition of fraud. If not, you originally gave him permission to take pictures of your home for advertising purposes and signed a contract so he seems to be in a sound legal position to do exactly that.

To avoid such problems, make sure that any contract for photographic services covers the physical ownership, license, or rights to the use of the photo now and possibly in the future.

Ronnoco

[JSPhoto]

Unfortunately the photos ARE indeed copyrighted by the photographer unless you have something different in writing.
He however cannot continue using the photos of your home if he is no longer responsible for renting it, so your both right in your own respects.

That reminds me....I have to go to court again tomorrow over my deadbeat customer....hopefully this is the last trip, but somehow I doubt it.

JS

[GA3]

Not the answers I was hoping to hear but thanks for the responses. I appreciate that.

I do have an email whereas I asked him to explain the set up fee more clearly (but not really sure that it does!).

Here's what's in the email........let me know if it helps me at all -

"As to the schedule of fees, it includes the photography and web set up.

Let me know your thoughts!

Thanks!

[lidarman]

Not the answers I was hoping to hear but thanks for the responses. I appreciate that.

I do have an email whereas I asked him to explain the set up fee more clearly (but not really sure that it does!).

Here's what's in the email........let me know if it helps me at all -

"As to the schedule of fees, it includes the photography and web set up.

Let me know your thoughts!

Thanks!

Photography is not like making a cup and then giving you the cup. Photography is about information and giving you rights to ACCESS that information...but the generator of the information retains the rights for that information unless they explicity sign them over to you.

For another example, look at music--especially digital music. The creator allows you to use it and you are only allowed to use it for your own personal use. You can't resell it. While the artist retains rights to do what they want with it.

I see your issue here in that you paid money. But you paid an agreed amount for the service you got, not the rights to the photos. You certainly can negociate that aspect, for generally, a much larger amount of money.

I guess the question is, if you would have know this a head of time, would you have still agreed to do this? And if not, would you have paid $2000 for it plus the waiver of copyright so you could do what you want with the photos?

[Photo-John]

I think there is some gray area here. I would usually take the side of the photographer. but for the sake of argument here, I'll be the devil's advocate. I haven't seen the contract, but this sounds like a "work for hire" arrangement to me. In work for hire, you pay a photographer for a job, and unless it's specified, any photos shot during that job would be the property of the person who contracted the work. This is a situation that I've avoided because I never want to give up the rights to my photos. That's another reason to point it out. If someone hires you to shoot something, it may be a "work for hire" situation. If you want to retain the rights to your photos, you need to either avoid work for hire or put something in the contract about retaining the rights to the images.

Another example is if you are employed by someone to take pictures - like event photography. When you're working for that employer, the photos you take belong to the employer, not you. I have a contract with my employer (ConsumerREVIEW.com) that says I own all the photos I shoot while I'm working for them. CYA.

[Ronnoco]

I think there is some gray area here. I would usually take the side of the photographer. but for the sake of argument here, I'll be the devil's advocate. I haven't seen the contract, but this sounds like a "work for hire" arrangement to me. In work for hire, you pay a photographer for a job, and unless it's specified, any photos shot during that job would be the property of the person who contracted the work. This is a situation that I've avoided because I never want to give up the rights to my photos. That's another reason to point it out. If someone hires you to shoot something, it may be a "work for hire" situation. If you want to retain the rights to your photos, you need to either avoid work for hire or put something in the contract about retaining the rights to the images.

Another example is if you are employed by someone to take pictures - like event photography. When you're working for that employer, the photos you take belong to the employer, not you. I have a contract with my employer (ConsumerREVIEW.com) that says I own all the photos I shoot while I'm working for them. CYA.

Good and valid points. However the issue then becomes was he hired as a web site developer or a photographer. If you were not hired as a photographer then the photos become yours. I am hired as a consultant, media specialist, producer etc., so I avoid those issues and dictate in the contract the rights involved in the ownership of any product.

Ronnoco

[Photo-John]

I am hired as a consultant, media specialist, producer etc., so I avoid those issues and dictate in the contract the rights involved in the ownership of any product.

Interesting. Makes sense. However, if it's not in the contract, and someone decides to sue, then it's all up in the air, anyway - at least in the US. So it's always best to be very specific in the contract. Of course, no one ever thinks of everything. That's part of what keeps lawyers in the business.

[ken1953]

John makes some very valid points about works for hire. I recently shot a major sporting event here in town for the Chamber of Commerce and a local photography business. Now I'm a bit worried about the pics I took. I did ask the photographer I was working with about if I retained the rights to my photos and he said yes, but we have nothing per se in writing. And of course, now I need to be mildly concerned about the CofC. Of course, LTC has worked for them many times and has never had a problem.
But back on subject, I have to agree with PJ on this one. It sounds to me like a work for hire. But, it is a gray area and you both may have rights. I don't think that he'd have enough of a legal leg to stand on to try to sue you for additional funds for work and use that you have already paid for. Unless it was specified that the photos be used only on HIS website, you probably have a right to use the photos on any website.
Well, I guess that's what lawyers are for, to figure things like this out.
Sorry that I probably have confused the issue more.
Ken