Topic awaiting preservation: Urgent help or advice please

Ok for the last week i have been shooting non stop for a customer, who in turn is selling the material to a third party..

Ok here is the twist, my customer (who i know now is in deep financial shit) has told me that the material wasnt good enough for the said 3rd party and refuses to pay.... some 3000 euro worth of work...

well i contacted the 3rd party who i know personally and he informs me that he has paid in full for the @material which isnt any good@ and is totally happy with it.

So this begs the question, who owns the copyright, as i shot it on my camera, using my materials and time...

I have not been paid for this work at all, in part or total; The reason for it being urgent is that the 3rd party leaves for england in about 12 hours....

My stance is that having not been paid the agreed amount for the material, it remains mine and my client has no right to resell it without payment..

and havinf lied to me i dont know what to do, obviously the 3rd party wont be happy with this, but he's not the one thats out of pocket...


someone please any ideas

tom

Do you have anything in writing?... contract .. or anything along those lines?

Michael not for this job, as its someone i have worked for on many occaisions without a hitch, but the 3rd party knows it was me that took the photo's

Maybe this will help - this is an exerpt from the Guide to Copyrights.

Ownership defined under the copyright act:

"Generally, if you are the creator of the work, you own the copyright. However, if you create a work in the course of employment, the copyright belongs to your employer unless there is an agreement to the contrary.

Similarly, if a person commisions a photograph, portrait, engraving or print, the person ordering the work for valuable consideration is the first owner of the copyright unless there is an agreement to the contrary. The consideration must actually be paid for the copyright to belong to the person commisioning the photograph, portrait e.g. "

My interpretation is that unless you have recieved any type of payment or a written agreement the rights remain with you.

sib

edit:
typo

[This message has been edited by sib (edited 08-02-2003).]

Sib that was my interpretation on it, i have informed the 3rd party that unless i recieve payment in full from either of them by the time he leaves tonight that he has no publishing rights as they still remain with me...


just a side note the 3rd party has already made payment in full to the person i shot for and is happy with material, so its the person i was working for who is holding out,

An interesting sidenote in a similar case of ours that ended this past week.

We did some artwork for a customer's site, but maintained the copyright on it. Recently, we discovered the artwork on another site, and determined that it was given to the second site creator by our client.

Two cease & desist letters later, it was finally removed. But not before our client said they were never notified that they couldn't do that. We produced all of the old emails and other documentation, along with quotes from
15 U.S.C. § 1114(1)(a),
15 U.S.C. § 1125(a)(1)(A),
17 U.S.C. § 106, and Section 106 of the Copyright Act of 1976

Problem solved. Make sure you have records of everything. And, if you haven't drafted a release form yet, you should for future use.

Hmmm... I smell a GurusNetwork tutorial on intellectual property concerns......

" any ideas? "

Write down all the facts with date and approx. time.

Back up all your verbal communications with emails and or faxes - at least you will have something to back you up should it amount to that.

Verbal agreements are generally legally just as binding as written ones, as long as you can produce some type of prove. In your case you have the statements from the 3rd party.

I think that at this point you might have to wait and see how this all unfolds before you can decide which route to take with it - sadly to say.

sib

was to slow here..

I agree with you there Pugzly. Copyright is such a complex issue and so many people have no idea what is involved and what the interpretation of the law itself involves.

I did do some work for someone a while back. When I recieved the contract and read it over it looked fine. However reading it the second time I noticed the phrase "all works" forget that!
I send the contract back to be rewritten for one piece only.

sib

As I understood, he contracted you to make the pictures, with him gaining copyright of them, when, and if, he payed.
Since he didn't, he had no rights to sell the images.
Plus, you had a contract 'tomeaglescz makes pictures, other guy pays X euros'.
Since you made the pictures, and he received them,
you ought to be paid, unless the other guy can prove that you were to be paid on a 'on-sell' basis. (which obviously happend. get that in writting from your third party!)
Alas, I'm not a laywer, but you should find one asap, at least if the 3000 euros is worth more to you than further buisness with the other guy. (now, I sure wouldn't do any more buisness with such a person.).
He'll be able to tell you what ways there are to 'extract' payment from an uncooperative party in whatever country this took place.
It will take some time though.
You could also draft a letter basically saying,
'You got [14, maybe up to 21] days to pay me x EUR for this-and-that work done on the dates...,
or work out a payment plan with me',
send that by registered mail (which you can use to prove that he got that letter later on).
At least in Germany, this is actually required before you can take more drastic legal measurments.

Another reason always to send unusable comps first. Get approval, then payment, then you send the goods.

Incidentally, Business and Legal Forms for Photographers by Tad Crawford may be a good place for you to start when putting together an agreement for future work.

Good luck!