If she would pay me I wouldn't mind, the fact is she refuses to pay

Purple Princess Edits wrote:
It states on my profile I might use any images I create on my portfolio so surely is this not her responsibility for not reading this?

The simply fact is, I'm happy for her not to pay if it means I can use the photo, however I said I would send her a watermarked image so she could not sell it
She would not accept this condition

I have no intention of selling it and never would as I don't own the original image I know that

Short answer, "no," posting it on your profile is not sufficient.  It is your responsibility to be sure she knows and understands it if you are compelling her to grant you a license.

My personal opinion is that you should accept the payment and take this as a learning experience.

She wont pay, she refuses to pay, like I said there would be no issues if she would pay
Its all good tho Im simply going to remove the model from the photo and re use my background with a photo I own at least then its not a total waste of my time and effort

Purple Princess Edits wrote:
She wont pay, she refuses to pay, like I said there would be no issues if she would pay
Its all good tho Im simply going to remove the model from the photo and re use my background with a photo I own at least then its not a total waste of my time and effort

I am confused here.  What you said in your original post was that she will pay you if you take the photo down.  So take the photo down, take the money and take it as a learning experience.

It seems that she is basically making you an offer.  She will let you use the image for self-promotion if you waive your fee, or she will pay your fee, but then she doesn't want you using the image for self-promotion.  It seems to me that you have to choose.

Sorry for the confusion heh

I doesn't really matter now anyway she has childishly blocked all emails/messages before resolving the situation, after saying she was going to use my proof photo I sent her anyway without paying ect

I have learnt some valuable info
Ill leave it at that but If I did see my proof photo anywhere Id be mighty annoyed since I will not use the photo to try and keep her happy

Like I said I dont wanna make enemies Im here for networking

I'm not so sure of that.  If that was posted on the profile and the person contacted her through MM, then I'd say that was part of the contract.

Meanwhile, take your payment and don't use the image.  Then wait for the photog to use the image.  Then simply link to the image and use it as an example of a picture you did for an obviously happy customer.  No one said you can only claim credit for what's on YOUR portfolio.  In fact, you could probably even embed the image into your profile and not even tell anyone its on some other web page.  There is more than one way to skin a cat.

DOBA
Dead On Balls Accurate... It's an industry term

yes she did blackmail

Im going to try reasoning with her again but her childish actions of blocking any mail after sending the message stating, 'haha well I have your proof photo anyway' is ridiculous

It was the model [see OP] and she probably doesn't own the copyright. There is likely a 99.999+% chance that she does NOT own the copyright.

In UK law only the copyrght owner can authorise the creation of a derivative work. Even a broad license will seldom go that far. If nothing else this kind of image manipulation gives rise to a moral rights claim which is entirely actionable here and  separately from an infringement claim. I surely hope that the OP has an indemnity agreement from the model who sent them the image to alter.

The OP assumes they OWN a copyright in the altered work. They are probably quite wrong in that assumption. Any such claim can never flow from an unlawful act. And, indeed, what they have done, in altering the image and creating additional original and altered copies, may amount to one, or more, criminal acts in British copyright law. Even the mere possession of an infringing article in the course of a business is a criminal offence here. As is maintaining, in the course of a business, the means of creating infringing articles. And the OP - IS - holding herself out to be in the business of altering/editing images. DUH!!!

These things, with these very loose agreements, broad assumptions, and lack of a paper trail, attached to them, always strike me as being a little like the name of that German aeroplane company - a "Mess-o-shit" [sic]

Imagine taking a copy of Star Wars, re-editing it, and trying to claim a new copyright. This is effectively, on a smaller scale, what the OP is claiming. ROTFLMAO

Studio36

wiseleo wrote:
One call should change her mind about playing dangerous games.

If her photographer did not authorize the changes, she can't do this anyway.

If her photographer the copyright owner did not authorize the changes, she can't do this anyway.

[shouting]
AND NEITHER CAN THE OP!
[/shouting]

Studio36

I always make sure before hand that the image can be altered (basic rule), in this particular case it is a female model/photographer

She took the image

Ah, but you see you never said that. You only said: "A girl sent me a photo to manipulate for her"

And are we getting these things in writing? A license for the purpose?

Further, I would still assert that you do not have an independent copyright in the altered image. Not to mention that there is also the licensing mash-up.

Studio36

I may not have copyright of her image but I do have copyright to the stock photos used to make the new image. (I took the photos of the sky and sea I used)

Its all fine now though I've learnt to always make sure I can use the photos in my portfolio, and have made a terms and conditions document which Im going to show/get to agree too, to prospective clients before I create a piece.

But that all being said If I see my proof photo anywhere I will and can take action, as she has not got permission to use my background which her model photo is on

To which I will suggest that she can actually assert, at least for her own personal use of it, that there exists an "implied license" - UNLESS - you withdraw any such implied license in writing. You can, and should, also assert any available moral rights to your copyrighted elements.

What she can not do, by way of an implied license, is further license the image e.g. to a third party such as a publisher, containing your underlying and combined copyrightable work. 

You may not want to make an enemy here, but I am afraid you have no choice. If you don't want her using it, unless and until you get paid, you must send her written notice to that effect. And only a notice in writing has any legal effect.

Studio36

thanks that actaully really helps, I know a solicitor so I should be able to do that no problem

This thing is now so muddled and mired.  Let's not forget that the OP has tried to assert a condition, after the fact and that the photographer has offered to pay, so long as the OP doesn't publish the image for promotional purposes.

Quite frankly, I am having a hard time criticizing the photographer.  She sent the OP a photo, agreed on a price and is willing to live up to her end of the bargain.  She may not want the OP posting the image, because she is selling prints.  She doesn't want to diminish the value of the photo if it is available to view for free.  I, personally, don't see that it really makes much of a difference, but that is the photographer's choice.

I also agree that the state of the various licenses are now unclear, although, it seems to me that the OP is in breach of her agreement if she doesn't deliver what she promised.  The mere fact that she wants a condition, i.e. her right to display, which wasn't agreed in advance, doesn't give her the right to force it upon the client now.

The bottom line though is that I don't really think this is worth anyone's trouble.  I can't imagine anyone pressing this in court.  I think it is just a learning experience for all the parties involved.

The big mystery I have is why this has had to degenerate to the point that it has.  I understand emotions, but it seems to me that it should just all be worked out between them.  This is not the title to the Eifel Tower.  We are just talking about a couple of images.  There should be a compromise here everyone can live with.

I understand that, and I am not trying to flame you.  I see this as a misunderstanding.  I also don't see it as blackmail.  I have also not heard her side of the story.  All I know is that your insistence on using the image is what started this.  Perhaps she over-reacted.  As I said, I don't know her side of the story.  I also think, at least from what I have read, this is all blown out of proportion to the nature of the problem.

My point of view, way too much energy here for a relatively small problem.  I think you should both dial down the rhetoric and just work it out.

all very true, yes i really do wish could sort it out but her childish manner of blocking all form of contact demonstrates her type of attitude

At the end of the day I don't really mind to much now, as I have a stock photo of a model with the same pose to put in the photo. It is her who has lost out by demanding new things after completion, she already before I even thought about putting it in my portfolio asked for it to be half the price we originally agreed. I think she was trying to get something for nothing and pushed it too far.

Personally I think it has all become a communication problem but in general there is a mutual understanding that if contacted via a site like MM it is to be used on MM unless stated so before proceeding, as the reason my price was so cheap for her is the fact I intended to use it in my portfolio.

But all been said now I know to always double check I can use any photos I manipulate on my websites so its been a good learning curve

And that is where you and I disagree.  I think it is common practice.  In general most clients will be happy to let you do it, but what you are doing is making it a matter of entitlement. 

I will give you a great example.  I shoot fine art.  My art is made into signed, limited edition prints.  I do, at times, use a retoucher to clean up certain kinds of work.  Sometimes, I have found them on MM.  It is absolute.  If I pay a routoucher to work on my fine art prints, I would not expect them to display them on MM, or anywhere else, for that matter, including a printed copy in their books.  Their reward is my payment.

I think the lesson here is to not assume anything.  If you want a term, or in your case the right to display the work you are retouching, merely ask.  I think, in most cases, you will get what you want.

and the best advice post in the thread goes to.... Studio36
Reread this post OP We dont take kindly to people changing our images
Sounds like you both are playing at your craft and neither understand the implications to your actions.

I don't see how you can assert that the OP did not have the condition asserted in advance when it was on her profile.  The photog read the profile, saw the work, and send pictures.  The use of the image by the OP was a pre-established condition.  If the photog didn't want to agree to it, she shouldn't have sent pictures.  It's that simple.

When you go to McDonalds and order a burger, it comes with catsup.  That's pre-established.  They don't try to up-sell you on it after you've paid for it but it doesn't say anywhere that it has catsup on it.

If you get your car repaired and the sign on the wall says $35/hour, you pay it.  There's nothing to negotiate later.  You don't pay, you don't get your car back.

I don't see how an explicit statement on her profile is any different.

British [copyright] law has a lot of permutations that might or might not occur in US law. Much more formalised and developed concepts of "implied rights" is only one example. We do not have "fair use" in the way it exists in US law but a much more narrow concept of "fair dealing". We also do not have any WMFH provisions [the whole WMFH concept was abandoned some years ago]; but we do have substantial moral rights that do not exist in US law.

As more information came to light [such as late on in the thread that the "girl" was also the photographer,] the position of what the law would allow, prohibit, or require, of necessity, also changed. But, at one point the OP announced that she had better not see her work posted anywhere... and that was a fairly strong implied threat of some intent on her part that she would take "steps" to see that not happen.

We have a good example here of winging it into a set of difficulties from which extrication may be difficult if not impossible. All for sloppy paperwork and a lack of full disclosure and documented agreement from the onset.

And, notwithstanding the specific issues in this thread alone, a peek at the kinds of issues that apply to "photoshop wizards", more generally, and their legal standing vis a vis derivative works they create.

Studio36

Purple Princess Edits wrote:

She wont pay, she refuses to pay, like I said there would be no issues if she would pay
Its all good tho Im simply going to remove the model from the photo and re use my background with a photo I own at least then its not a total waste of my time and effort

Best thing to do.