Lee Lossing wrote:
Now the bikini company owner and I agree to disagree.

Don't worry about your "rights" until you reach a point where you are no longer able to carry on discussions.  Disagreements arise all the time in business.  You just have to talk it through together and make reasonable compromises.

Lee Lossing wrote:
Hi everyone-

Let's just say for instance I did a shoot yesterday. The shoot was for an automotive product company and done by me. A second company was asked to provide bikinis for the girls. The bikini company was to get 2 or 3 images of each girl for use on their own website. We would get the use of the bikinis for the shoot as well as the eventual ownership of the bikinis as a small payment to the models. When the shoot took place the owner of the bikini company request ALL of the raw, unedited images be put on CD. Let's also say that the photographer does not agree with the request. The owner did show, did provide the bikinis and did give a bikini to each of two models. Now the bikini company owner and I agree to disagree. The owner of the automotive product company is fully aware and fully in my corner. What legal rights do I have to use the images I took with my camera with his bikinis on the models under the agreement that has fallen through? Basically can I use the images for the calendar still? We are prepared to shoot the whole thing over if need be. The photos of the two models already taken would most likely amount to four of the twelve months of the calendar.

Offer to Buy the Bikinis and sell them shots with their product. If not reshoot. Don't give the Bikini guy $H!t , maybe a couple low res jpegs for his site , but  make him pay for anything beyond that. Beside he is getting free props for his product if it is being used in a calender.

CLT wrote:
3) property/brand/whatever release from the bikini sponsor*

*This is important if logos are showing, or if the a design/patter/cut is easily recognizable as their brand of product.

May I respectfully ask that you cite the statute under which you give this advice?

Lee Lossing wrote:
On paper I have my model release. The bikini company owner has his. That's it. Both are signed by both models. The agreement (here's where the plot thickens) between the auto company, the bikini company and myself went by e-mail through a third model who set a good deal of the shoot up. That same third model was unable to make it due to severe medical problems.

I have the full support of the auto company owner, the location owner, the vehicle owners, and the models who participated. The only individual not on board is the bikini company owner.

Emails?  Print them out and see what they say.  Without a written agreement these can do in a pinch.

Documentation is a wonderful thing.  So is making sure all the i's have been dotted and t's crossed before one click happens.

May I respectfully ask that you cite the statute under which you give this advice?

Of course, Chris. Unfortunately I am unable to recite any particular court cases right off my head. Designers are able to own rights to patterns on fabrics, or even specific cut/tailoring of, in this case, bikinis. If the bikini sponsor in question does own all the design, branding, etc of the supplied goods, they will be able to sue the OP for damages if he decides to go ahead and publish his calendar. The court will then decide if the bikinis are unique enough, whether it's distinguishable in the images, or if there are actual damages. I believe it's every phtographer's goal to avoid the courtroom. once again, I apologize for not being able to provide a real case study in support of my claim. I will do some research and if I find anything, I will post again. If not, take everything I said cum grano salis, or a spoon of sugar if you prefer.

-CLT

Lee Lossing wrote:
No reasonable compromise was possible. The shoot was to take place on two days, the second of which has yet to take place. Where we stand now is we are going to provide our own wardrobe, or pay the models a wardrobe allowance to provide their own. Depending on the legal matters, we may end up shooting the whole thing over. Ideally we would like to use the images from the 6 hours of shooting and the countless time and energy many people already have invested.

Definitely not legal advice, just opinion. For real legal advice, contact a contract and IP lawyer!

Sounds like the Bikini owner wanted to change the deal and have more images for use by their company. That's great for him, but from what you've posted, he had originally agreed to take only a few pics(3-4?). Unless RAW or ALL PICS was included in the email correspondance, he doesn't have a leg to stand on.

However, having said that, he can still cause problems and make a big fuss about it.

You could offer him a discount on usage rights to the images(non-RAW) for use for his website/business/etc. Call it a meeting him halfway solution.

The other, and much safer, route would be to just reshoot the shots with different bikinis.


If he likes your work enough to try to get more photographs out of you, then he should compensate you for them. He is only owed a few photographs for his company's contribution of the bikinis for the photography and to the models, as originally agreed upon.

Giving him a discount to smooth over things and getting a written agreement setting what is given to whom for what in stone would be a good way to put a final end to this, if you want to use the images from the 6 hour shoot.

Under no circumstances would just giving him the images be agood idea. Either through misunderstanding or through intent, he has attempted to change the agreement to his benefit. Whatever you do from this point onward, get it in writing!

Kudos on what sounds like an awesome photoshoot, btw!

To reiterate: I'm no lawyer. For real legal advice, consult a contract and/OR an IP lawyer!

Lee Lossing wrote:
No reasonable compromise was possible.

If you are at an impasse... not legal advice but practical advice...

Shoot it over... but this time for God's sake get your contracts/agreements sorted before you get to the stage you are at now... indeed, before you ever shoot the first image... IN WRITING!

Who gets what; who gets first choice; who chooses the field from which the "selects" will be made - you or them; how many images each gets to actually use [the "selects" - though they may have a choice from more than that number]; how they can be used by each party - exclusive or non-exclusive use; compensation from/to each user and use; compensation for you and the models.

As agreements go you are now in a "garbage in = garbage out" situation... but if you are beholden to anyone it is probably the bikini supplier at this point because they agreed to furnish the advance compensation and followed thorough by actually supplying the gear.

You are out of pocket but so are they.

Studio36

Lee Lossing wrote:
Hi everyone-

Let's just say for instance I did a shoot yesterday. The shoot was for an automotive product company and done by me. A second company was asked to provide bikinis for the girls. The bikini company was to get 2 or 3 images of each girl for use on their own website. We would get the use of the bikinis for the shoot as well as the eventual ownership of the bikinis as a small payment to the models. When the shoot took place the owner of the bikini company request ALL of the raw, unedited images be put on CD. Let's also say that the photographer does not agree with the request. The owner did show, did provide the bikinis and did give a bikini to each of two models. Now the bikini company owner and I agree to disagree. The owner of the automotive product company is fully aware and fully in my corner. What legal rights do I have to use the images I took with my camera with his bikinis on the models under the agreement that has fallen through? Basically can I use the images for the calendar still? We are prepared to shoot the whole thing over if need be. The photos of the two models already taken would most likely amount to four of the twelve months of the calendar.

Thanks in advance for any help and advice offered.

What was the nature of the agreement that you reached with the bikini company? What did you offer them in exchange for their bikinis, and what form did this offer take? Tell me you didn't do all this on the basis of a verbal agreement!?!

If you promised two or three images, that's the deal. People are always coming back and asking for a better deal after the fact. That's like negotiating a deal to buy a car, and then coming back to pick it up after the papers are all signed, and saying you've decided you want a lower price. It's not ethical -- the deal is cut.

So if you have a paper trail of some kind outlining the agreement, and it's not ambiguous on the number of images you will provide, I'd leave it at that. If the bikini guy wants more pictures than the original deal encompassed, they can buy them from you.

If you have no paper trail for the agreement, frankly, you deserve the wretched position you find yourself in. Verbal agreements have no place in business like this.

UCPhotog wrote:
What should you do?

You should NOT ask legal questions here. Ask an attorney. Should you take legal advice metered out from MM, and then it's incorrect, who will protect you? Take legal advice from a lawyer and his malpractice insurance will protect you.

I don't mean to sound rude (and I know it does sound that way), but we see all the time people asking questions of legal matters here at MM. Would you ask this same group of people here at MM for medical advice? There are tons of analogies I could make, but in short, No, you wouldn't. So why take advice of other professions outside of our community?

Just another rant from me,

UCPhotog

OK -- my turn to rant. The average professional photographer in America makes just over $21K a year -- yet every time a business issue comes up, people like you suggest that we can't consult each other -- we have to go running to a lawyer. If we did that, we'd be broke.

Maybe your photography business is so profitable you can afford a few hours of lawyer time at $150/hour every time a dispute comes up. Mine isn't. And I suspect most photographers are in the same boat. These kinds of disputes are common and frequent -- there is no reason to involve a lawyer in them for the kind of money that is at stake -- that would be insane. When the legal fees will easily exceed the cost of the shoot, it's insane to talk to a lawyer.

I think it's reasonable to ask other people who are involved in the same business for advice on how to handle a situation -- particularly for situations that are relatively trivial like this.

You compare this to medical advice -- horrible analogy. Medical situations involve life and death. The medical business is a trillion dollar business, and a stay in the hospital can easily run into 10s of thousands, sometimes hundreds of thousands of dollars. To compare that with a simple bikini shoot is ludicrous.

It's reasonable to ask for advice -- and not every business dispute requires the advice of a lawyer.

Finally, unless you live in a town like NY and LA, the advice you will get on photography matters from the local lawyers can be remarkably ignorant. Lawyers tend to be specialists -- and unless they know the ins and outs of entertainment and photography law, they can give very bad advice. I recently had a model come back after I delivered the images from a TFP shoot, for which he signed a complete release, and ask me to sign a document, drafted by his family lawyer, that said if I made any usage of the images without his permission, I would be liable for damages. Now THERE was some good advice from a lawyer!

Lawyers are great when you REALLY need them. Otherwise, leave them in their cage where they belong.