Opinion on verbal agreement - Copyright

[Christian Ocasio Gonzalez]

I'll cut to the point. I made the mistake of having a verbal agreement in which I approached a dealer offering to take pictures of their exotic cars pro bono so that I may have access to all of them and in return I would give them low resolution pics at 1024x768 and provide them with one large print as long as I was accredited for the work. A month later they request if I can give them all the Hi-Res pictures of the cars. I responded that it wasnt part of our initial agreement and we could discuss it in further detail. This is their reply below - How would you respond?

Apparently we don’t have an agreement until the “further details” are worked out. In legal terms we did not have a meeting of the minds to make our agreement binding. Therefore you’re are not authorized to use the pictures of any vehicles owned by Fantasy on your website or in any other commercial application until such “further details” as described in your email are defined and agreed upon by both parties.

DEMAND IS HEREIN GIVEN TO CEASE AND DESISIT USING ANY PHOTOGRAPHS OF FANTASY OWNED VEHICLES ON YOUR WEBSITE OR IN ANY OTHER COMMERCIAL APPLICATION.

Please contact me if you care to discuss the “further details” to find a common agreement.

[Mike Ditz]

It seems that you were playing hardball about their use of the images and they are zinging one back at ya with a claim that you are not allowed to use the pics either. I don't know how enforcable either claim is, having no paperwork puts both of you at equal disadvantage.
Remember that you have what they want, try and keep this non meeting of the minds on a friendly basis because arguing with a exotic car dealer (sometimes they end up being fronts for laundering money but that for another day) is like 'rassling with a pig. You both get dirty and the pig likes it.

Your shoot was free, it wasn't pro bono...pro bono means for the public good.

[John Thawley]

Well, just to come from the side of "go screw yourself..." where were the cars parked or shot? Is there anything in the photos that identifies the dealer?

Chances are they don't "OWN" the cars... and I don't think there's any claim to intellectual property in owning something. In other words, if you were walking by a restaurant and photographed a park car, I don't think the owner can tell you what you can do or not do with the picture.

I don't know... I think it's pretty gray... not to mention LAME.

JT

[Todd Corzett]

If the cars were custom then they may have some intellectual property rights, but if it's just a Ferrari or something then they (as 'owners') do not have any intellectual rights, IMO.

The REALLY GOOD thing is that they do not already have the hi resolution images. So if everything goes south you are not out much (other than your time). If it was me, and I wasn't fed-up with them, I would go have a sit-down to work out the "further details". Explain to them the what the usage rates will be for the higher resolution images, etc. IMO they just want some free photos, so you may not get very far.

But now a question for you... if you are unable to use these images, what will it cost you? If you just have a them in a web gallery with hundreds of other photos then probably not much... then again if you have a client who wants to buy some, that could be something to fight for.

Like Mike said, it may not be worth fighting... not that they are right, but because often times both sides end-up getting dirty.

-Todd....

[Christian Ocasio Gonzalez]

Majority of the pictures were taken at a dead end street a few blocks away from their showroom and some were taken at a parking lot behind their showroom. Now, none of these cars are custom and are stock. The only identifying source in the pictures are the license plates. I had another shoot set-up for Sunday but cancelled it. Though they are probably helping me more then I am them - they were getting alot for nothing and that was one hell of a reply for me simply saying that we could discuss it in further detail if they wanted the Hi-Res shots. I would have liked to pursue future venues with them but this just put a bad taste in my mouth because instead of calling me he replied as if it was a court order. I called the owner however he did not pick up either phone but I left a message. I also drafted a message that Im going to send - see below:

My apologies if the terms were incorrect because you are right and there is no legal binding agreement between us. Prior to Jim Bob's departure in my meeting with him and discussions I had with Billy Bob it was agreed for me to be able to photograph the vehicles of Fantasy Car Share, provide a selected large print to be displayed in your showroom and normal size digital files for use on your website or for advertisement again with credit given to myself at no cost to Fantasy Car Share. In return I would get credit for the pictures displayed and also display them in my portfolio.

At the present time I have removed access to the link in which the Ford GT40 was on as you did not want them displayed. I feel however that there maybe a bit of confusion as to the rights of the pictures. Photographers maintain rights of any picture taken unless otherwise specifically stated in which they relinquish those rights to another party. I hope that we can come to an agreement and continue in any future shoots. In the mean time I will cancel any meetings I had with Billy Ray for photographing any of the cars. Thank you for your time and hope to hear from you.

[Morgan J Segal]

Since there was "no agreement" they do not have the right to put the photos on their website or display them in the showroom either, so if they continue to play this game, you should request your pictures back.


On a side note, if you are trying to build a portfolio, you should go out and shoot normal cars. If you can make them look good, you can make anything look good. Exotics tend to distract from your work, it becomes more about the car than the photo

[John Thawley]

My apologies if the terms were incorrect because you are right and there is no legal binding agreement between us. Prior to Jim Bob's departure in my meeting with him and discussions I had with Billy Bob it was agreed for me to be able to photograph the vehicles of Fantasy Car Share, provide a selected large print to be displayed in your showroom and normal size digital files for use on your website or for advertisement again with credit given to myself at no cost to Fantasy Car Share. In return I would get credit for the pictures displayed and also display them in my portfolio.

At the present time I have removed access to the link in which the Ford GT40 was on as you did not want them displayed. I feel however that there maybe a bit of confusion as to the rights of the pictures. Photographers maintain rights of any picture taken unless otherwise specifically stated in which they relinquish those rights to another party. I hope that we can come to an agreement and continue in any future shoots. In the mean time I will cancel any meetings I had with Billy Ray for photographing any of the cars. Thank you for your time and hope to hear from you.
Whoa... do NOT send this. THIS is exactly what got you into trouble in the first place.

STOP trying to sound like a lawyer. They tried to sound legal, now you're trying to sound legal.... and all that is going to come of this is a big six-pack of pissed off.

You're not a lawyer. Your just a guy. Talk like just a guy. BE DUMB LIKE A FOX.

It's pretty simple.

Sorry for the confusion. I can understand if you don't want to pay for hi-res images. I thought we had a pretty good deal with us both having nice shots on our websites. If you don't want to continue using the photos on your website, I understand.

Sorry.... but that was our agreement. Anything beyond that and we're going to have to sit down like gentlemen and work it out.
DO NOT acknowledge his demand that you remove anything from your website. THEY ARE YOUR IMAGES. When you push that shutter, you own the image. END OF STORY.

If this doesn't work, just tell him to go pound sand. Trust me, he's got nothing.

I hate these people. They're just trying to bully you.

JT

[Bill Jurasz]

I bet you won't be doing verbal agreements again. :) Also agreed with John that they have no legal standing to dictate what can be done with your images. If they would have even attempted any sort of legal action they would have gotten nowhere fast.

[Cyril Ma]

If there's no agreement, then you own the images. There's nothing to be sorry about. YOU didn't cause the confusion; it takes two people to cause a confusion in most cases. Hell even if there is something to be sorry about, you still aren't sorry anyway because he's just being a prick :)

Since there is no agreement, like JT said, you own the images. The car might be theirs, but the photos are yours. Since you aren't selling these photos but are merely using these for your portfolio, strictly speaking you don't even need a property release. Keep messages short and sweet. Chances are you already lost them as a potential client, so why waste more time in dealing with it? Short, sweet but cordial and move on.

[David Adolphus]

When the first message said "Fantasy," I though it was Fantasy Junction (http://www.fantasyjunction.com/used-cars.php), which would be a client worth holding onto (and who need to hire a photographer). Jim Bob and Billy Ray you can live without. Sounds like it's time to walk no richer but definitely wiser.

For what it's worth, I had a very similar experience with a non-car client some years back--we agreed on X dollars for X uses of so many shots, and after the shoot he decided he wanted to do a lot more with them for no more money. He ended up getting nothing, we both went away unhappy, but his bad business practices eventually screwed him, while I stuck the shots in my portfolio and moved on.

[Christian Ocasio Gonzalez]

Thanks for all the responses to this matter - Im feeling better that I did not send that original email and only drafted it. A lesson learned the hard way and I wont be doing any more verbal agreements from now on. I do believe that they are lost as a potential client and thats that. I will respond in a more clueless way as to try and not offend the guy. After I removed access to the website their marketing manager called asking what happened because he wanted the pictures. I simply told him he would have to speak to his boss. I have attempted to call this guy but he wont pick up the phone. Im not going to try and chase him down. Unfortunate ending but one of life's lessons. Thanks to all who replied with advice. If anything changes I will update. Time for me to focus and get ready for the LA Auto Show tomorrow and not have to worry about ownership of the pictures......that is unless Ford will come after me when I take pictures fo the 2010 Mustang and say its theirs....ha ha. thanks again

PS - Everybody might know this already but I pulled this straight from the copyright.gov website:

"Copyright protection subsists from the time the work is created
in fixed form. The copyright in the work of authorship
immediately becomes the property of the author who created
the work. Only the author or those deriving their rights
through the author can rightfully claim copyright."

[John Thawley]

Time for me to focus and get ready for the LA Auto Show tomorrow and not have to worry about ownership of the pictures......that is unless Ford will come after me when I take pictures fo the 2010 Mustang and say its theirs....ha ha. thanks again
Not so fast young Grass hopper... in Ford's case, it is theirs. Not the photo... but the content of the photo. That's where it gets sticky. More below.


"Copyright protection subsists from the time the work is created
in fixed form. The copyright in the work of authorship
immediately becomes the property of the author who created
the work. Only the author or those deriving their rights
through the author can rightfully claim copyright."

Yes.... you have the copyright to the photo you created. You are the owner the minute you push the button.

HOWEVER, their may be a copyright or ownership of INTELLECTUAL PROPERTY featured in that photo.

So, take the Trans-America building in San Francisco. You may photograph it all you want... and you own those photographs. HOWEVER, you can not use those photos in any form that would constitute commercial use. The have Trademarked the building.

You can go to a concert and shoot photos of Coldplay to your hearts content. Short of putting them on your dresser, you can't do anything with those photos that could constitute commercial use. Including using them in your portfolio. The members of Coldplay own the rights to their image, their name, their music.. and any and all licenses related to the sale, display or commercial use.

The difference with your dealership buddies is they don't own the "intellectual property" of those cars. They own the car. They can't copy the car. They can't sell the design of the car or the name of the car. Those things remain the property of the car manufacturer. Ford can't make a Corvette duplicate and call it the Fordette... the brand and brand character are property of General Motors... or a local bankcruptcy court coming your town soon.... You dealership guys don't own any of the "ideas," brands of trademarks, etc.

I shoot the ALMS. Everything that happens during that event is the property of the ALMS. Entrants and participants have loosely signed off on to the use of their image rights during that event. If I shoot Clint Field at that even... it's fair game has I have negotiated rights with the ALMS.

It's tricky.... but I'll tell you this for sure... the only rights you'll have at the LA Autoshow are editorial. PERIOD.

JT