Let's Talk Copyright for Retouching Fauxtographs

[Open Focus]

I’ve been searching the internet and haven’t found anything that relates to this situation so I’m hoping that someone can help me. I apologize in advance for the length of the post.

I was hired to retouch and “fix” photographs that were taken at a wedding by an amateur photographer.

This photographer had charged some friends of mine nearly $200 for a engagement/wedding package and photography for the event. When I attended the wedding as a guest, I had noticed this photographer mostly standing in the background and half the time had her camera turned off rather than shooting the event.

She stayed for the preparation of the wedding took some photos here and there, sat at the very back during the ceremony and snapped some images and for a few hours afterwards while everyone danced and ate. She left shortly after I did, due to having contractions. (She was 38 weeks pregnant at the time.)

When R & C received their photos on a Wal*Mart photo CD, they were extremely disappointed by the results. They shelled out what money they could for out of focus, heavily under/over exposed images and nearly every picture had such a severe angle to it that you had to look at the photos with your neck tilted to the side. R (the bride) was devastated as this was such an important day and 80% of the photos recording the wedding were unusable.

She sends a message to the Photographer:

“I’m not too happy for the pictures. Sorry.”

And she gets this response:

“What do you mean your not happy? You wanted unedited and some edited? You have to think of money and time also and location options etc. I got paid a 100.00 and was there at 2:30 and no one was ready. Usually do pictures before also I cut you a amazing deal a 100.00 for almost seven hours and copyrights for all pictures, no one else would have charged you just a hundred plus edit time plus travel etc. Another thing its very hard when their is more than one camera example people focused on more cameras when I am the photographer. I am sorry your not happy I don’t know what to do. Some turned out amazing and I did the best I could under situation plus time and money.

Their was also over 500 pictures on a cd for you which most people don’t do; you also have to think of ones not cooperating etc. I don’t know what your so unhappy about? I was pleased with how some turned out but it isn’t all my fault either. Backgrounds location wasn’t that great, more than one camera, time, money, etc. Like I said sorry you are unhappy. If their is any you won’t edited write down number and as soon as I get free time I will edit those and post.

Your wedding was my third as I not considered a professional yet. Everyone starts somewhere. I do specialize in engagement maternity children family etc.

All I ask is you give me the credit on pictures when adding them since they are copyrighted etc. When putting in a folder. Etc [;)] engagement and wedding.”

So R calls me up, hires me on and offers to pay me to retouching images. After looking at them I agreed to try and salvage what photos I can for her. I’ve managed to salvage 50 photos so far, however, I have put my editing on hold until I can get some more information about copyright because apparently the original photographer of the photos found the pictures I had edited and posted on my facebook page for R & C’s family members to grab. She is angry because I have used my handle at the bottom to prevent theft on the images. In the description it states:

“This is a retouched photo, original photography was taken by ########### ## ####. Digital retouching and adjustments were made by Broken Focus Photography.

Again, I hold NO OWNERSHIP to the original image. The ownership rights belong to ########### ## ####.”

I also state in the description folder that I did not earn any profit by retouching the photos.

So R & C tag themselves in the photos and the Photographer sends her a message the next day:

“I see my images in a folder on your page retouched not to be picky but those are my images and prefer they say my name it looks like it is their copyright on my images you and I only. Id prefer to have my credits on them and the folder.

I am not harrassing you by any means you have to understand where I am coming from. You did say you were unhappy then you did say sorry you were stressed. I should have been asked if the images could be re-done as a professional you still have to copyright the print release as well. Whatever you wanted means print images etc not to have someone re-do the images then put her copyright on images to look as that is it her work. My copyright should have been placed on images and it worded the other way around as it does look as though it is her work not my work as I am the photographer who took the pictures. Happy or not if you were in my position you would understand where I am coming from on this matter. I do take the good with the bad as I did the best job as I could and was to your place and no one was ready to do before pictures as it is hard to get everyone attention at after the wedding pictures as their are so many distractions etc so I wanted to do them all before and no one was ready etc. Which I had no problems with and was also their for a great amount of time and made no money etc. If you were so unhappy then I should have been notifed and as myself as I am learning new things editing programs etc I would have done whatever I could have to make them right as what I would do with any of my clients etc. I am not a bad person and everyone does have to start somewhere and you were aware of that as well.

I will contact my lawyer to see what can be done and if you want to demand your money back that is fine but you should have came to me first for my permission etc and give you a print release and copyright release so this wouldn’t have been a issue at all if I would have been contacted in the first place and I could have made it right for you as I would for anyone. I treat my clients good and a begginer so I am still learning new things and just starting my profession as your husband is doing the same with his automotive business. Everyone has to start somewhere so I will leave it at that. Exactly what I am doing and so sorry you were so unhappy with your work.”

The way that I see it (and I could be very wrong which is why this post has been made), the photographer failed to provide an adequate and satisfying service to the client. R made it clear that she was not satisfied, and the Photographer threw out excuse after excuse and waited until the very end to offer fixing or refund the money.

There was never a contract signed, no model release form or anything–in fact, C stated when he received the CD that she had said verbatim “They are yours to do whatever you want.”

Every photo I used had to be cropped and shopped. The angles were so bad I had to actually BUILD legs and edges to get a decent image out of them. I DID use “Broken Focus Photography” On the image, just as I use it on all other images I edit and post on the internet to prevent some form of theft.

She has yet to contact me, but continues to badger R & C and pile on excuses for being a crappy photographer.

My questions:

Are R & C in the wrong for asking me to retouch photos?
Should I adjust my tag on the photos I upload to my Facebook Photography page to read the name of her photography business “########### ## ####, Broken Focus Photography”?
Does she have a leg to stand on in court if it goes that far? I understand that copyright begins once the image is created but don’t you have to register an image for copyright if you intend to take it into court? She did state to C verbally that they can use them however they choose but does that nullify her claims that we are infringing on her copyright? Each photo I have uploaded has HAD to be adjusted in some fashion. I am not using a single image that she has edited or using the original photo alone.

Examples of the photography in question:

View post on imgur.com

View post on imgur.com

View post on imgur.com

Any links or sources would be greatly appreciated. I would like to clear up this issue before she actually calls a lawyer. I don’t think it’ll come down to that, but it is something I want to be aware of beforehand.

Thanks guys!

[Notaphotographer]

From what you are saying, your friend paid a wedding photographer $ 100.00 dollars and they are not happy..Well DUH!!!!  That is the problem and why fauxtographers exist. People want perfection but do not want to pay for it, but that is another issue. But to answer your long question with a short answer. You do not have any copyrights as a retoucher. The photogrpaher is correct if you are showing © on the photo. The other question is did the photographer grant a license or give the copyrights to the bride? Is it in writing? If there is nothing formal, technically the photographer would still own all rights.  I doubt they get a lawyer, but why would you want all the aggrevation.

[Notaphotographer]

Oh, one other part about the registering copyrights. By law the image is the photographers. Images do not have to be registered. In may cases the EXIF data will show copyright and a name. That is plenty. Plus many sites when you upload photos to them they are considered registered. Always do contracts, and please tell your friend to spend more than $ 200.00 on an important event like a wedding. Even the best wedding photographers still have images retouched:) $200.00 would not even cover my time, much less the photographers.

[jetpix]

Just one point – they are not considered registered unless registered with the copyright and trademark office, and a certificate of registration issued.

[Notaphotographer]

Jetpix is right as far as being officially registered. I selected a poor chocie of words.

[dicksforeyes]

I cut you a amazing deal a 100.00 for almost seven hours and copyrights for all pictures

Well, apparently it is in writing. I would tell her to go fuck herself regardless. Even if she is right about what you can expect at that price.

[jetpix]

Got to hand it to you JJ, that was a good catch.

 

In this case, it is evidence of evidence – what is called “parole evidence”.  Legally speaking, it may or may not be admissable in court as proof, it depends on the state.  However, as JJ said, albeit less politely, I think in this case it is more than sufficient to tell the fauxtog to sit on it and spin – you paid for the photos, including the copyright – they are yours to do with as you please.  If she wants to get a lawyer – see you in court.  99 times out of a hundred, the whole lawyer thing is either a bluff, or comes to nothing when the lawyer tells them they don’t have a case.

 

 

[Open Focus]

I have to admit, I was hoping that was an option. R recieved another message from her as follows:

As I know the basics and learning more and no you never asked nor did you tell me you wanted or needed different edits cause I would have done my best to learn something new and correct them for you guys as I do my best in making all my clients one hundred percent satisfied and treat all my clients very special and each one mean a lot to me. I am so sorry you were so unhappy. You should have came to me and also asked. Yes I was speaking as get prints post on websites upload on websites to order from websites etc not have another photographer edit them post on her photography page etc. Those are still my images and I would have done my best to make you a satisfied client. You could have asked me I could have gave you a copyrighted release. She could have asked me and put my name on them so that way we both get credit. She does beautiful work and would love to learn more and we both could get each other business. I am still learning and would love to be taught more, just can’t afford classes. I do the best job I can. I am done talking about it. I will contact her tomorrow and talk to her as this is between us. You gave her the verbal agreement. I could give her a form to sign and it will all be okay but I am done talking about this for now. You should understand where I am coming from if you were me!

For the record, I did not want to be dragged into this. I just wanted to make a friend happy by fixing what should have been done by her or rather, a real professional. I spoke with R and she explained that she couldn’t get a photographer to shoot her wedding because anyone she contacted wouldn’t call her back. I’m not staking claim in the initial photo, and giving her credit where its due so I don’t see how or why I would have had to personally contact her about it when she gave verbal consent for the cd with the images.

Will post with what she says to me. Totally looking forward to that message. /sarcasm What cracks me up is that C had received a text message from her accusing me of being a petty photographer and a thief. Now she wants me to work with her. Really?

[AndyF]

Hats off to you, there are some good saves in those images. Lucky she gave the originals on CD too huh?

[stef]

In all seriousness, internet forums are a very poor place to get legal advice.

Just like hiring a cut-rate photographer for crappy pictures, free internet legal advice is worth every penny you spent.

 

I spoke with R and she explained that she couldn’t get a photographer to shoot her wedding because anyone she contacted wouldn’t call her back.

My guess is because she offered them $100. I wouldn’t call her back, either.

 

In any case, if R has a shared copyright, you don’t even have to list credit. But if R doesn’t have the copyright or rights to create derivative works, then technically you’re not allowed to edit them. If all she has are print rights, you are fucked. My guess is that R (not you) should make a written agreement that it’s a shared copyright, and agree that any copies/edits will credit “Photo by ###” and no more. You can add Edit by ### or not, or whatever. If the photographer wanted to mess with you and you don’t have this in writing, she can make things difficult, but it would cost her a lot more than the $100 she made; and because she values her work so little, one could argue that the liability should be tiny. Even if she doesn’t file a federal lawsuit, the bad PR and enemy you’re making isn’t worth it. Just get her to sign over the copyright in writing, and you’ll agree to add “Photo by her” on any albums or the image directly, and be done with it.

 

And you should actually consider talking to an IP lawyer. More and more are cropping up these days, and they’re giving good prices.

[dicksforeyes]

Nobody is going to “talk to an IP lawyer” over a hundred dollars. Not unless they work for a pack of skittles now.

[stef]

It’s actually over $0 and a lot of good will (something trolls might not understand).

The OP is not making any money on this. But it has a much higher potential loss than $100.

 

Every photographer should have an IP lawyer they know by name, because they (should) be used all the time. Every time you have to update your contracts, you should have him look over it and fix any missing legalese. And yeah, they are indeed inexpensive if it’s really basic stuff. If they have to research, then it goes up fast.

[Open Focus]

Stef, Initially, I was supposed to take the job and shoot the wedding but it was taken to the shop for body repair and so I gave her a list of places she could call. She got in touch with a photographer who was booked and she would have had no problem paying the $800 to hire him on. This photographer was literally the last ditch effort aside from allowing friends and family to take pictures with their camera phones — Anyway I’m rambling.

Getting an IP Lawyer is a great idea, and that has been something I’ve been putting off for a while. I used to go through a friend of mine’s to get advice so hopefully they are still in the area.

So I finally heard from the fauxtog, and this was what she had to say:

I just wanted to start out by saying. Sorry for all the confusion etc. I am glad that you did give me credit for my Photos. ##### and I have been talking and I was upset about it and didn’t know how to take it. Your edits are amazing and as a “hobby photographer” I am not professional. Just like anyone, everyone has to start somewhere and as my sessions and clients grow I learn new things and still in the process of learning new things. I was upset over the fact you didn’t even ask and I saw no credit going towards me. I do have copyright on those images and they are mine. I know you would understand if this matter happened to you. ##### gave you permission I understand but I still have the Copyright and as you and I both are photographers. I hope you understand why and where I am coming from on this matter. I do have to say your edits are beautiful. Can you share any information with me on programs etc you use so I can better myself as right now I can’t afford to have you edit but how much would you charge etc. Can you please help me and share some information with me on programs etc. I am not nor will I ever try to steal business just trying to make mine better and improve my editings etc. Thank you so much and have a great day. I hope to hear from you soon. ########### ## ####
I love how she still continues to deny I give her any credit. *Cough* http://i.imgur.com/KJbDH.png *Cough* I’ll be calling that attorney tomorrow. As far as I know, Stef, the only thing that was really released was her verbal consent when she handed them the CD. I think the easiest thing is to just remove the photos entirely and just hand R and C the fixed images on disc. I have better images that I can use rather than deal with some fauxtog who wants to throw up legal ownership when she can’t shoot her way out of a paper bag.

This is probably going to be the first and last time I will ever offer retouching services again.

[stef]

A common misunderstanding is that giving credit means it’s not a copyright violation. That is not true. It just makes you less likely to be called out by the owner. You should respond to the photographer that things are between R and C, and stress that you can’t imagine any photographer holding bad images over the head of a bride who’s trying to process them, and urge her to grant her the copyright in exchange for credit. Tell her in the long run she’ll get much better exposure with images R shares, than images R refuses to share because she doesn’t like the edits.

 

Appeal to both the emotional and practical sides, and only a spiteful person will refuse without good reason.

[lolz]

“Nobody is going to “talk to an IP lawyer” over a hundred dollars. Not unless they work for a pack of skittles now”

Bwahahahahaaa!!! Thanks JJ, I literally did a spit-take on my computer screen. By the looks of the work, that’s what she SHOULD be charging.

 

I will add here, just a little. The photographer needs to cover their bases, because the fauxtographer could decide to lawyer up, and there’s no excuse you could give that would justify altering someone else’s work without a copyright release (and anyone that gives a copyright release deserves a good punch in the head) before a judge and allow this hack to walk away with quite a bit of your shit.

I have been asked to do the same thing for people and won’t touch it unless they have a copyright release, and even then I am not crazy about doing it. Copyright law is pretty evasive, and there’s not much precedent established as far as photography is concerned, since the digital age is relatively uncharted territory. I realize it’s a friend, and you just want to help out, but why didn’t the ‘friend’ hire you in the first place?

I would run, not walk, in the other direction, and chalk it up to lesson learned.

 

ETA- I did see the reason why you weren’t the original photographer, I must have missed it on first viewing.

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