Whendy Fast wrote:
Posted this in the wrong forum, couldn't delete. Posting in correct forum now

I designed a costume and paid to have my hair dyed and styled a certain way. One of the costume pieces was a stick on piece (could only be used once).

I found a photographer from MM to do a TFP shoot. We shot on the 2nd of November. Since then, he has completely disappeared. I've sent messages via MM, I have called and left several messages. No response. And sometimes his phone is on, sometimes it's off. And he is also active on MM. So I know he is ok. I even stated in my messages, if he needs time or is dealing with something, it's ok. I would just like an ETA. Still no response. I've been very patient and nice with my messages. You don't get anywhere being rude. So I haven't been. I haven't even been demanding or anything, since it was TFP.

I don't know what to do. Reshooting would be a HUGE hassle. I would need to pay to have my hair done, again. And I would have to re design part of the costume. It would cost me time and money to reshoot.

Has anyone experienced this? Is there anything I can do? Is there any legal remedies I can pursue? Please, if anyone can help me, it would be greatly appreciated!! These photos are very important to me. I put a lot of time into designing and creating the concept.

My guess is that unless you have some sort of proof a shoot took place your legal options are limited at best. Did you sign a contract?  Did it state when images would be provided?

Whendy Fast wrote:
I found a photographer from MM to do a TFP shoot.

...  Those images probably belong to the photographer, not to you.  Sorry.

Jennifer Haggerty wrote:
-You have little to no legal backing in this matter. As the photographer he owns the copyright and depending on what documents were signed, if any, you have very little control over what he does with them. He may not be able to sell these images but he can share them where ever and whenever he chooses.

Gianantonio wrote:
My guess is that unless you have some sort of proof a shoot took place your legal options are limited at best. Did you sign a contract?  Did it state when images would be provided?

Looknsee Photography wrote:
...  Those images probably belong to the photographer, not to you.  Sorry.

All likely incorrect advice. The copyright does belong to the photographer - but that is not the issue. There is a verbal or written agreement (by messages or verbal exchange) of intent. The model has time and money invested in this agreement and is out expenses based on a return of investment.

The use of the images (the photographer's part of the agreement) has not been provided. She does have cause and basis, should she decide to pursue it. If the model has enough evidence of the agreement and her expenses, a court may provide relief.

She's not after the ownership of the copyright, just the agreed use of the images. Small claims does not require a contract nor absolute proof - only a preponderance of evidence. If it is worth the effort to discover, file, serve and go through the court would be the question.

Tony Lawrence wrote:
A Mechanic Lien and as I understand the law that would not be something the OP could ever do.   Lawyers and legal action costs money.   She could get her money back but since its TF what could she recover?   Damages?   What are they?   Even with a written contract I can't imagine any court offering her any relief.   This may sound mean but when its a important project and time sensitive then pay.   Find  someone willing to give you edited images quickly and pay them.   Maybe the images aren't something the photographer wants to edit.   Maybe he feels he should have been paid.   Maybe they don't look good.  Lets say she could actually get this before a judge which isn't likely ever.   Photographer says the computer damaged the files or they were lost.   Would he say you owe the OP money.   

Paying for models and photographers is the way to go when its important and needed by a certain day.   That's not to attack the OP.   She trusted in a member to keep his word and its unfortunate that didn't happen and yes even paying doesn't insure prompt delivery of images but is a good place to start.   OP, contact the member again and ask if he would be willing to send two or three of the best images.   Offer to pay something.   I know that wasn't your agreement but if you need it compare paying a small amount to the hassle of doing the project again.

+1

And as others have said, fair and legal does not mean financially worthwhile.

Spending $20,000 to recover $1,000 does not make financial sense (exaggerated example), or spending 40 hours fighting over something that might take a couple of hours to re-do also does not make sense.

As people keep telling models and photographers, when a problem occurs, do a cost/benefit of trying to fix it. And yes, vengeance is a benefit and very valuable to some people.

Whendy Fast wrote:
Posted this in the wrong forum, couldn't delete. Posting in correct forum now

I designed a costume and paid to have my hair dyed and styled a certain way. One of the costume pieces was a stick on piece (could only be used once).

I found a photographer from MM to do a TFP shoot. We shot on the 2nd of November. Since then, he has completely disappeared. I've sent messages via MM, I have called and left several messages. No response. And sometimes his phone is on, sometimes it's off. And he is also active on MM. So I know he is ok. I even stated in my messages, if he needs time or is dealing with something, it's ok. I would just like an ETA. Still no response. I've been very patient and nice with my messages. You don't get anywhere being rude. So I haven't been. I haven't even been demanding or anything, since it was TFP.

I don't know what to do. Reshooting would be a HUGE hassle. I would need to pay to have my hair done, again. And I would have to re design part of the costume. It would cost me time and money to reshoot.

Has anyone experienced this? Is there anything I can do? Is there any legal remedies I can pursue? Please, if anyone can help me, it would be greatly appreciated!! These photos are very important to me. I put a lot of time into designing and creating the concept.

As I understand it, your shoot was a trade for images.  If you sue the photographer a court could rule that you are entitled to the images.  However, there is no guarantee the images would be to your liking.  The photographer may have done a lousy job and all the images turned out poorly.  If he turns them over to you he would probably be fulfilling his end of the bargain but you would still have nothing of value.

If this was a look you really wanted to shoot and you were prepared to invest money in hair and wardrobe you should have invested in hiring a real professional to shoot it for you.  I've done some trade shoots with inexperienced models and I never invest more than my time.  I would never invest money to shoot with someone I don't know.

Whendy Fast wrote:
Posted this in the wrong forum, couldn't delete. Posting in correct forum now

I designed a costume and paid to have my hair dyed and styled a certain way. One of the costume pieces was a stick on piece (could only be used once).

I found a photographer from MM to do a TFP shoot. We shot on the 2nd of November. Since then, he has completely disappeared. I've sent messages via MM, I have called and left several messages. No response. And sometimes his phone is on, sometimes it's off. And he is also active on MM. So I know he is ok. I even stated in my messages, if he needs time or is dealing with something, it's ok. I would just like an ETA. Still no response. I've been very patient and nice with my messages. You don't get anywhere being rude. So I haven't been. I haven't even been demanding or anything, since it was TFP.

I don't know what to do. Reshooting would be a HUGE hassle. I would need to pay to have my hair done, again. And I would have to re design part of the costume. It would cost me time and money to reshoot.

Has anyone experienced this? Is there anything I can do? Is there any legal remedies I can pursue? Please, if anyone can help me, it would be greatly appreciated!! These photos are very important to me. I put a lot of time into designing and creating the concept.

Whendy Fast wrote:
Posted this in the wrong forum, couldn't delete. Posting in correct forum now

I designed a costume and paid to have my hair dyed and styled a certain way. One of the costume pieces was a stick on piece (could only be used once).

I found a photographer from MM to do a TFP shoot. We shot on the 2nd of November. Since then, he has completely disappeared. I've sent messages via MM, I have called and left several messages. No response. And sometimes his phone is on, sometimes it's off. And he is also active on MM. So I know he is ok. I even stated in my messages, if he needs time or is dealing with something, it's ok. I would just like an ETA. Still no response. I've been very patient and nice with my messages. You don't get anywhere being rude. So I haven't been. I haven't even been demanding or anything, since it was TFP.

I don't know what to do. Reshooting would be a HUGE hassle. I would need to pay to have my hair done, again. And I would have to re design part of the costume. It would cost me time and money to reshoot.

Has anyone experienced this? Is there anything I can do? Is there any legal remedies I can pursue? Please, if anyone can help me, it would be greatly appreciated!! These photos are very important to me. I put a lot of time into designing and creating the concept.

Unless you signed a model release that said you are to recieve the photos and what use and rights the photographer has, then the photographs belong to the photographer. I often hear from the models I shoot TFCD with that they run into the same situation as you have. I always give a copy of the photos on a CD the same day of the shoot and let the model know that they can pick some for me to retouch later if they want. At least that way the model has something from the shoot before we depart. Just like models that flake or don't respond, some photographers are no different. Unfortunately, there are some unprofessional people of MM.

Random Image wrote:
Well, you would need to talk to a lawyer, but there "might" be the possibility of attaching a mechanics lein against his property pending delivery of photos.

Financially she's in this for a few hundred bucks. You are seriously going to give advice to someone like this to go pay a few THOUSAND dollars to an attorney to pursue this? Really? I can't believe people actually give advice like this.



AT BEST, her course of action would be to spend a few dozen hours dealing with small claims court and then collect the few hundred dollars she's out. Then it's a matter of collecting.

Seriously, it's not what you want to hear OP but you may have to write this one off. Maybe go leave a bad review for him on Yelp or something.

Whendy Fast wrote:
These photos are very important to me. I put a lot of time into designing and creating the concept.

Moving forward, should there ever come a time where images are of such importance to you, you might want to consider paying a photographer.

Herman Surkis wrote:

+1

And as others have said, fair and legal does not mean financially worthwhile.

Spending $20,000 to recover $1,000 does not make financial sense (exaggerated example), or spending 40 hours fighting over something that might take a couple of hours to re-do also does not make sense.

As people keep telling models and photographers, when a problem occurs, do a cost/benefit of trying to fix it. And yes, vengeance is a benefit and very valuable to some people.

I don't think many of the legal beagles that post about suing have ever done it.   A small claims court might not be able to even hear a case where there is no actual money exchanged or  or a trade.  How could a judge determine what the models time was worth vs. doing the project again.   How could a judge know what the exact terms were.   How many photos were too be given.   In what time frame.   Yes emails could be helpful but courts don't have time to go through a lot of changes when their is no money involved.   How was the OP damaged?   Did she miss out on a paid opportunity because of it.   What if the photographer gives her one photo.   Is that enough.    A member mentioned a lien.   That's not going to happen over some TF photos and advising the model to do legal research is a waste of time in my view.   

Instead of going to a law library or looking on http://www.lexisweb.com/  and spending hours.  Just offer the guy a few bucks for the best few images.   Doesn't that make more sense then trying to sue him or not getting any photos at all.   That wasn't for you but a general comment.

Whendy Fast wrote:
Posted this in the wrong forum, couldn't delete. Posting in correct forum now

I designed a costume and paid to have my hair dyed and styled a certain way. One of the costume pieces was a stick on piece (could only be used once).

I found a photographer from MM to do a TFP shoot. We shot on the 2nd of November. Since then, he has completely disappeared. I've sent messages via MM, I have called and left several messages. No response. And sometimes his phone is on, sometimes it's off. And he is also active on MM. So I know he is ok. I even stated in my messages, if he needs time or is dealing with something, it's ok. I would just like an ETA. Still no response. I've been very patient and nice with my messages. You don't get anywhere being rude. So I haven't been. I haven't even been demanding or anything, since it was TFP.

I don't know what to do. Reshooting would be a HUGE hassle. I would need to pay to have my hair done, again. And I would have to re design part of the costume. It would cost me time and money to reshoot.

Has anyone experienced this? Is there anything I can do? Is there any legal remedies I can pursue? Please, if anyone can help me, it would be greatly appreciated!! These photos are very important to me. I put a lot of time into designing and creating the concept.

Forget all the legal mumble jumble that's been posted.  I'm NOT excusing the photographer for not communicating with you, but just saying ...  What you can or should do in my opinion is first, lay off the messages for a while, then keep an eye on his profile on here.  The fact that you shot around 24 days ago is jumping the gun a little bit thinking that he's bailed on you.  Be patient.  Many of us are very busy this time of the year.  After December 2nd, try sending another message as at that time it will be one month.  Keeping your eyes on his profile or any other place you know that he might post will be important.  You'll know if he has any completed images when he posts them, and you can copy from there.  I do hope he contacts you before resorting to that, but it might be the only way to get copies ... IF there are any.  Did you get to see any from his camera after the shoot?  I know some photographers who screw up so bad, or lose everything ... etc ... and are too embarrassed to tell the model.  I am so communicative, that would never happen from me. 

Have a happy Thanksgiving! 

Whendy Fast wrote:
I found a photographer from MM to do a TFP shoot.

You found a photographer willing to do you a favor.

Whendy Fast wrote:
We shot on the 2nd of November. Since then, he has completely disappeared. I've sent messages via MM, I have called and left several messages. No response. And sometimes his phone is on, sometimes it's off. And he is also active on MM. So I know he is ok. I even stated in my messages, if he needs time or is dealing with something, it's ok. I would just like an ETA. Still no response.

When did you first call?  How many calls and messages?
It has been just over three weeks.  You should have waited at least two before contacting him at all.  It sure looks like you immediately began harassing him; you've very likely pissed him off.  Send him one more message begging forgiveness for being so rude and then give him some space.  If he doesn't contact you, then try one more time in three months.

Whendy Fast wrote:
I've been very patient and nice with my messages.

You have an odd definition of patient.

Whendy Fast wrote:
You don't get anywhere being rude.

Then why were you?

Tony Lawrence wrote:
I don't think many of the legal beagles that post about suing have ever done it.   A small claims court might not be able to even hear a case where there is no actual money exchanged or  or a trade.  How could a judge determine what the models time was worth vs. doing the project again.   How could a judge know what the exact terms were.   How many photos were too be given.   In what time frame.   Yes emails could be helpful but courts don't have time to go through a lot of changes when their is no money involved.   How was the OP damaged?   Did she miss out on a paid opportunity because of it.   What if the photographer gives her one photo.   Is that enough.    A member mentioned a lien.   That's not going to happen over some TF photos and advising the model to do legal research is a waste of time in my view.   

Instead of going to a law library or looking on http://www.lexisweb.com/  and spending hours.  Just offer the guy a few bucks for the best few images.   Doesn't that make more sense then trying to sue him or not getting any photos at all.   That wasn't for you but a general comment.

Judges are called upon, all the time, to divine the terms of a contract from the testimony, emails and other parole evidence.  I agree with you, it is an imperfect science.  Judges don't punt though.  If they feel there was an agreement, they will work hard to come up with an equitable interpretation of what was supposed to take place.

The real issue isn't that judges can't or won't try to divine the contract.  The issue is that, absent clear evidence, you really can never know how a judge will rule.  It is always a crap shoot.

Whendy Fast wrote:
Posted this in the wrong forum, couldn't delete. Posting in correct forum now

I designed a costume and paid to have my hair dyed and styled a certain way. One of the costume pieces was a stick on piece (could only be used once).

I found a photographer from MM to do a TFP shoot. We shot on the 2nd of November. Since then, he has completely disappeared. I've sent messages via MM, I have called and left several messages. No response. And sometimes his phone is on, sometimes it's off. And he is also active on MM. So I know he is ok. I even stated in my messages, if he needs time or is dealing with something, it's ok. I would just like an ETA. Still no response. I've been very patient and nice with my messages. You don't get anywhere being rude. So I haven't been. I haven't even been demanding or anything, since it was TFP.

I don't know what to do. Reshooting would be a HUGE hassle. I would need to pay to have my hair done, again. And I would have to re design part of the costume. It would cost me time and money to reshoot.

Has anyone experienced this? Is there anything I can do? Is there any legal remedies I can pursue? Please, if anyone can help me, it would be greatly appreciated!! These photos are very important to me. I put a lot of time into designing and creating the concept.

There's only one thing we know for sure - he didn't look at the photos and say "OMG, these are the best photos I've ever shot, I can't wait to send them to the model!"

The odds are you're not missing out on anything. He's probably too embarrassed to reply.

GPS Studio Services wrote:
If she did the shoot but didn't receive images, there is certainly an issue of "breach of contract."  This isn't about who owns the photos.  It is about her posing and then getting nothing in return.  The legal term is "unjust enrichment."

I agree with those who say that the damages aren't going to be great, but that doesn't mean that she has no recourse.  If she were to go to small claims court, my guess is that the court would award damages, order delivery of the images, or with equal probability, both.  It is really up to her if she wants to make the effort.  She isn't going to get a huge award, but the court will order something if she can show that she did a TF shoot and received nothing.

It isn't an easy call whether to follow through on these things or not.  There is a lot of effort involved to go to small claims court.  Only she can decide if she wants to pursue it.

Ok - not a lawyer - but wouldn't the court ordering that the photographer turn over the photographs amount to specific performance - which courts are typically reluctant to do?
Also maybe the photographs suck - in which case, I would think the court would be even more reluctant to force the photographer to relinquish them. That's not to say she might be due some form of compensation depending upon the original agreement. And that's a BIG "depending upon".

GPS Studio Services wrote:
If she did the shoot but didn't receive images, there is certainly an issue of "breach of contract."  This isn't about who owns the photos.  It is about her posing and then getting nothing in return.  The legal term is "unjust enrichment."

I agree with those who say that the damages aren't going to be great, but that doesn't mean that she has no recourse.  If she were to go to small claims court, my guess is that the court would award damages, order delivery of the images, or with equal probability, both.  It is really up to her if she wants to make the effort.  She isn't going to get a huge award, but the court will order something if she can show that she did a TF shoot and received nothing.

It isn't an easy call whether to follow through on these things or not.  There is a lot of effort involved to go to small claims court.  Only she can decide if she wants to pursue it.

J O H N  A L L A N wrote:
Ok - not a lawyer - but wouldn't the court ordering that the photographer turn over the photographs amount to specific performance - which courts are typically reluctant to do?
Also maybe the photographs suck - in which case, I would think the court would be even more reluctant to force the photographer to relinquish them. That's not to say she might be due some form of compensation depending upon the original agreement. And that's a BIG "depending upon".

I am not disagreeing with what you have said.  Courts are often reluctant to order specific performance, but they sometimes do.  I didn't say to you that they "would" order specific performance.  I gave you a list of things that they "could" do.   If you read, I used the contraction "or."

I think it is unlikely that the court is going to care if the images are good or bad.  It would depend more, on what the promise was in the contract.

You are right, courts are always hesitant to order specific performance, but they do have the authority to do so.  Depending on the facts, that is one possible outcome, it isn't the only possible outcome. 

My view is that, more often than not, they will attempt to establish damages and render a money judgment.  I do know of at least one person that got an order for the delivery of images.  It wasn't a TF situation.  They hired a photographer to shoot a party.  The photographer didn't like the photos so he refunded the client's money.  The client took the photographer to small claims court despite receiving the refund.  They subpoenaed the photos.

The judge reviewed the photos, agreed that they were sub-standard but ordered them turned over.  His view was, just because they were bad, didn't mean that the client wasn't entitled to them.  In that case, he felt that there would be irreparable damage if they didn't receive images from their party since they couldn't be replaced.

You are looking at specific performance from an unclear lens.  Courts are most reluctant to compel someone to perform a service that has yet to be done.  In the case of images, if they already exist, it becomes more of a question whether the defendant should be given a copy.  I don't know that it happens all that much, but, it happens.

Let's look at it another way, let's say that the defendant had filed a case in Superior Court rather than Small Claims Court.   Let's say that the defendant wanted the images as evidence of their claim.  There is no doubt that the court would compel production. 

In terms of specific performance, producing copies of images that have already been taken is different than ordering one to take images that don't exist.

descending chain wrote:

Whendy Fast wrote:
I found a photographer from MM to do a TFP shoot.

descending chain wrote:
You found a photographer willing to do you a favor.

Whendy Fast wrote:
We shot on the 2nd of November. Since then, he has completely disappeared. I've sent messages via MM, I have called and left several messages. No response. And sometimes his phone is on, sometimes it's off. And he is also active on MM. So I know he is ok. I even stated in my messages, if he needs time or is dealing with something, it's ok. I would just like an ETA. Still no response.

descending chain wrote:
When did you first call?  How many calls and messages?
It has been just over three weeks.  You should have waited at least two before contacting him at all.  It sure looks like you immediately began harassing him; you've very likely pissed him off.  Send him one more message begging forgiveness for being so rude and then give him some space.  If he doesn't contact you, then try one more time in three months.

descending chain wrote:
You have an odd definition of patient.

Then why were you?

I think maybe you misunderstood my message. You just told me repeatititively that I was rude. And I actually was not. Maybe you should read the message correctly before replying. I stated that I have not been rude to him once and was very confused as to why I have received no communication whatsoever. I understand the time frame you are talking about. And there is nothing for me to beg for. Beg for forgiveness? Are you for real? I was never mean in the first place. If anything, all of my messages were nice. I even stated in my messages 'I totally understand if things came up. Or you have a family emergency. Or if anything is happening at all. And I understand that this was TFP, so paid jobs are obviously more important than mine. And I understand if I'm not high on your priority list' I continued to say 'It's ok if it takes you another month to get them to me. Or however long you need. It would just be nice to have an ETA.' Trust me, I was very pleasant in my messages. So if you would like to tell me what is rude about that, be my guest.

descending chain wrote:
When did you first call?  How many calls and messages?
It has been just over three weeks.  You should have waited at least two before contacting him at all.  It sure looks like you immediately began harassing him; you've very likely pissed him off.  Send him one more message begging forgiveness for being so rude and then give him some space.  If he doesn't contact you, then try one more time in three months.

By the way. The verbal agreement was that he would deliver them to me immediately. He even said he could get me the unedited copies the next day. So that I could choose my favorites.  I have witnesses to these statements. I don't mind waiting though. He could've told me 3 months and I would've been ok with it. But that's not what was stated.

Jennifer Haggerty wrote:
-You have little to no legal backing in this matter. As the photographer he owns the copyright and depending on what documents were signed, if any, you have very little control over what he does with them. He may not be able to sell these images but he can share them where ever and whenever he chooses.

According to various lawyers I have talked to (not me), the copyright (in California) is a joint ownership of the photographer and subject (or owner of subject if it is not a person/persons) unless a contract states otherwise.

I am not endorsing the above with 100% confidence, but to say that if you call yourself a photographer, take a picture of (say) a copyrighted subject, you do not own entire copyright of that photo.

Another related topic, if you look at youtube.com, if their scanner program or whatever detects a song in the audio of your video then they will claim that song is copyrighted by someone else (even if they get it wrong).

Lastly, a certain less than upstanding person I know hired a crooked cop to forcefully take the memory stick/drive from a camera of a photographer in Los Angeles.

These are not my opinions nor do I encourage anyone to believe/take action, but just food for thought as to who owns copyright of a photo.

Sandra Vixen wrote:
According to various lawyers I have talked to (not me), the copyright (in California) is a joint ownership of the photographer and subject (or owner of subject if it is not a person/persons) unless a contract states otherwise.

I am not endorsing the above with 100% confidence, but to say that if you call yourself a photographer, take a picture of (say) a copyrighted subject, you do not own entire copyright of that photo.

Another related topic, if you look at youtube.com, if their scanner program or whatever detects a song in the audio of your video then they will claim that song is copyrighted by someone else (even if they get it wrong).

Lastly, a certain less than upstanding person I know hired a crooked cop to forcefully take the memory stick/drive from a camera of a photographer in Los Angeles.

These are not my opinions nor do I encourage anyone to believe/take action, but just food for thought as to who owns copyright of a photo.

LOL @ your lawyers.

Copyright is a Federal issue, not a state one.  There does not need to be a contract for the Copyright of a photo to be 100% the photographer's.  Except for some very narrow scope of work for hire being done as an employee, the written contract/agreement needs to be present for anything OTHER than 100% ownership by the photographer, even in California.

Others may able to better state this than I, but unless you're trying to express something different (such as right to publicity/right to one's likeness), from everything I've ever heard the opinions you're being given are worse than useless.

Back to the OP, Whendy, unfortunately it does sound like you may have made a pest of yourself a bit too quickly, but that isn't unusual, and neither are situations like this.  They are pretty common, and there is no magic way to help, and the harder you try the worse it can make things.  Just gotta stay nice and stay hopeful that you'll end up getting them.

Whendy Fast wrote:
Beg for forgiveness? Are you for real?

Just dropped a glass.  It broke.  I must be for real.

Whendy Fast wrote:
So if you would like to tell me what is rude about that, be my guest.

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