Copyright Issue Email

Note: Names have been removed at the request of those involved. I apologize for my mistake of posting your names before.

Dear N and O,

After taking much time to review all of the complications in coming to a mutual agreement, I have come to the conclusion that we had different understandings of what the agreement was right from the start and therefore cannot come to a reasonable resolution for both parties.

I do not feel that I am unfairly imposing any new restrictions on you, but I do believe that it was not clearly understood what I was offering as the photographer. I also explained to you why the shoot estimate was not drawn up earlier as I did not know what we would be shooting so I could not draw up an accurate estimate. However, I did give you a shoot confirmation to look over before the shoot and requested specifically that you look it over before we began, and was under the impression that you had. I regret that I did not double check to make sure you had done as I had requested.

I feel that I have made many compromises in trying to make amends with you, and that I have reached my limit as to how many concessions I am willing to make. At this point, I would like to end negotiations, cut my losses, and move on in our separate directions.

I have never had to make this kind of decision before, and I assure you it was not easy for me.
I genuinely wish you all the best.

Sincerely,
J

Please note that even though I own the copyright to the photos, since I do not have signed model releases from you. I cannot use any photographs of you in any kind of commercial application, and have no intention to.




N wrote:

> We don’t know what we might like to use them for. We probably won’t end up using them for much else, but we want to retain the rights to do so if we should decide we need a photo for something else. We did tell you we needed them for the website, but we didn’t say that was the only thing we might need to use them for, and you didn’t tell us upfront that there would be any limitations in how we could use them.
>
>
>
> We’ve talked with a couple photographers about this and it seems to be that the general protocol for these types of usage restrictions, if they are imposed, is that they are clearly outlined by the photographer when the initial agreement is made. You didn’t mention anything to us about restrictions on usage, time limitations, language rights restrictions, in what part of the world we could or could not use them, or the amount of shots we could select for our use in any of our pre-shoot meetings. So, it’s just unfair to impose any of these upon us now, after the fact.
>
>
>
> I honestly wouldn’t worry too much about us using them for much more than the web and promo kits. But we’re just not comfortable signing our names to terms we didn’t agree upon prior to the shoot.
>
>
>
> From: J
> Sent: Friday, October 15, 2004 8:37 PM
> To: N
> Subject: Re: Proofs
>
>
>
> What else are you going to use them for? I did ask you specifically what you wanted to use them for, for this specific reason.
>
> N wrote:
>
> Looks better… however, as we stated earlier, you did not specify any restrictions on usage before the shoot. So, if you could just remove the following line from the invoice: “…on an INTERNET WEB SITE, PRESS KIT, and ONE (1) DEMO CD ALBUM COVER” we’ll be ready to sign and submit payment.
>
>
>
> From: J
> Sent: Friday, October 15, 2004 7:48 PM
> To: N
> Subject: Re: Proofs
>
>
>
> Please fax back to me at (phone number)
>
>
> N wrote:
>
> Hi J,
>
>
>
> Thanks for your prompt response to our concerns. After reading your responses, we have a better understanding of your position as well. However, when we agreed to the price for the shoot, you did not specify any restrictions on usage, time limitations, or amount of shots we could select for our use. Had we been aware of these restrictions and limitations before the shoot we could have had the opportunity to address these terms prior to the shoot. In an effort to help mend the misunderstanding, we’re willing to pay you the higher amount ($300) for the shots. But we aren’t willing to accept newly imposed restrictions on their usage.
>
>
>
> For the model release agreement, we’re ready to sign that document but would just like an additional line added to reflect our understanding that you will in good faith not use these images of us in any way that would be derogatory to our names or image. You’ve already made it clear that it is in your interest to do this, but we’d just feel more comfortable if it was added to the written agreement.
>
>
>
> Thanks, J.
>
>
>
> N and O
>
>
>
>
>
> From: J
> Sent: Friday, October 15, 2004 12:29 AM
> To: N
> Subject: Re: Proofs
>
>
>
> Hi N and O,
> Please see the text in blue below for answers to your concerns.
>
> N wrote:
>
>
>Thanks for your work last night. It looks like there are some shots we can
>
>use for our projects.
>
>
>
>We wanted to make sure that we'd fully discussed the specifics of our
>
>agreement. When we originally spoke about doing the shoot you had said that
>
>you would shoot us for between $200-$300 and that that rate would include
>
>someone to do hair and makeup as well as you putting together a one page
>
>site for ALDEN, including retouching one of the photos from the shoot for
>
>the page. You made clear that you wanted to maintain the copyright on the
>
>photos so that you could use them for whatever your artistic purposes might
>
>be in the future. We also discussed that we would have full discretion in
>
>nixing any photos we weren't comfortable with, for whatever reason, and that
>
>they would be immediately deleted.
>
>
>
>As the day of the shoot approached, you had mentioned that you weren't sure
>
>you could still get the person you'd had in mind to do hair and makeup. So,
>
>wanting to make sure that it would be covered, we agreed that we would take
>
>care of our own hair and makeup.
>
>
>
> When we first discussed your budget for the shoot, I was told that your budget was around $500 for the shoot and website. My regular day rate is $500 for this kind of shoot with no website, but because I felt like Nichole really had a good idea of what it was going to take to do this shoot right (read: to get a shot that we would all be happy with), I agreed to do the shoot to be used on a website and possibly as promotional materials such as a press kit and flyers and one web page for $200-$300. We never agreed to using them for an album cover or CD inserts, but I included those rights in the new invoice for you anyway.
>
> I did say that I would try to get a makeup artist to come on board, as a favor to me, and unfortunately that fell through. However, I also quoted you very low so that we could have a small production budget (i.e. location, props, etc), the reason being so that we would be able to produce a high production value, portfolio worthy shot that we could all use. However, on approaching the day of the shoot, it sounded like you no longer had the budget for that, so I was flexible in agreeing to shoot with what you had. This compromised getting a shot for my portfolio so that we would get something that you were comfortable with.
>
>
>
>
>We agreed to these terms and proceeded with the shoot under this agreement.
>
>We were surprised; however, to find that even though we had agreed upon a
>
>rate of between $200 and $300 including hair and makeup, you had printed an
>
>invoice for us for the highest amount, $300.
>
>
>
> Yes, my day rate for this project still stands at $300. Please remember that this is a cost for the photoshoot and the website. I'm sorry, but I can not budge on this. Here is why. When we first all met to discuss the shoot, I was repeatedly told that you trusted my creative judgement and wanted me to bring my creativity to the table. I shoot mostly big production photos. Like I explained earlier, and also to N on the phone, the reason why I love to shoot musicians is because it allows me creative freedom that commercial and editorial shooting does not. So, I quoted you a price based on the potential of creating a portfolio worthy shot AND explained clearly that within your $500 budget, the leftover $200 would be used for location and/or props.
>
>
>
>
>Also, we definitely agreed prior to the shoot that you would maintain
>
>copyright of the photos. However, you never mentioned to us that there
>
>would be limitations on how we could use the photos taken, how many photos
>
>we could select from the group for our use, or any kind of time limits on
>
>the useage.
>
>
>
> So that you understand that I am trying to come to an agreement with you, I have loosened your useage of the photos. Please see the attached invoice for the details.
>
>
>
>
>In response to your comments last night regarding clients typically trying
>
>to make changes to the deal after the agreement has been made, it is
>
>definitely not our protocol to conduct business in that manner. We were
>
>under the impression that you had already spelled out all of the perimeters
>
>regarding photo use with us prior to the shoot and were surprised to find
>
>additional restrictions after the fact.
>
>
>
> In that case, I presume you will understand why I was apprehensive about agreeing to let you use the photos from this shoot for another purpose which was not what we had agreed. What we had agreed was that the photos were strictly for the purpose of promoting you guys at the performance during the AFI Film Festival, and also on your site for A. We had not discussed using any images for SFYE. As was explained to me, the two projects are entirely different and have nothing to do with each other. Also, please note that in regard to the SFYE site, I agreed to slice the jpeg file up for your web guy. That was all. Now, I have also erased the text, agreed to put photos on the page, and explained how to hyperlink the buttons. So that we can come to an agreement, I will also agree to allow you the use one image for the SFYE website only. This is my concilliation offer to apologize for my part of this mess. The terms of useage for these images that you choose will be written into the contract for A.
>
>
>
>
>We're confident that a mutually acceptable resolution can be reached. And I
>
>think that maybe we can take this as a learning opportunity to make sure
>
>that in the future everything is out on the table before any work has begun.
>
>
>
> I agree that all of this should have been ironed out before the shoot. My normal way of conducting business would be to agree on exactly what we are shooting, all the terms, production budget finalized, shoot confirmation signed, model releases signed, then shoot. However, it was clear to me that you needed flexibility in the creative process as the photoshoot was amongst many other things on your priority list. Therefore, I wanted to make the shoot easier on you by being flexible with what and how we shot everything - which in turn created an inaccurate shoot confimation for the day. I have definitely learned that no exceptions should ever be made like this as it does create a larger problem in the long run.
>
>
>
>
>The photos we would like for our possible use (and that you may retain) are:
>
>7769
>
>7770
>
>7771
>
>7775
>
>7783
>
>7786
>
>7787
>
>7788
>
>7789
>
>7790
>
>7792
>
>7793
>
>7794
>
>7795
>
>7798
>
>7799
>
>7801
>
>7802
>
>7803
>
>7805
>
>7806
>
>7807
>
>7814
>
>7815
>
>7816
>
>7817
>
>7818
>
>7833
>
>7844
>
>7845
>
>7846
>
>7849
>
>7856
>
>7857
>
>7858
>
>7859
>
>
>
>We request that all others are deleted from your archives, never to be used
>
>for any purpose.
>
>
>
> I agree to delete the remaining images not listed here, I just got nervous last night that I would have no images left to work with. Six images out of 125 (I do understand six was an arbitrary number) was just really low compared to your actual 36 images left. I misunderstood your intentions last night and I have no problem deleting all the images that are not on the list.
>
>
>
>
>Photo 7793 is the one we'd like to use on our one page ALDEN site. To make
>
>things really easy, we've gone ahead and created a mock design of the page
>
>in Front Page for your reference. It is located at the following hidden
>
>link: (link). The audio file links
>
>are as follows:
>
>(links to music)
>
>
>
>The only thing we didn't add to the mock page was one simple text box on the
>
>right side of the page which should include the following text:
>
>
>
>"A will be performing live at the Rx film premiere after-party on
>
>November 12, 2004 in Hollywood, CA. More information as it becomes
>
>available."
>
>
>
>That should be all you need for that simple page. The logo and the little
>
>speaker icons you can just take right off of the test page. So, that should
>
>be all ready to go.
>
>
>
>
>
> Great! Thank you for doing that, it gives me a lot more to work with in terms of making sure we get a page up that you like.
>
>
>So, I guess that leaves us in just sorting out the specifics on what we can
>
>agree is fair compensation and finding a written agreement we all feel
>
>comfortable signing that reflects our understanding prior to the shoot.
>
>
>
>Give us a call or drop us an email back with your thoughts and we'll go from
>
>there.
>
>
>
>Thanks again for your work yesterday!
>
>
>
>Sincerely,
>
>N and O
>
>
>
>
>
> Please review the attached invoice and if there are any more questions, please let me know. I would like to get started on everything by tomorrow evening, so if you can get back to me ASAP that would be great. If the invoice will work for you, please sign and fax back to me at (phone number)
> Thanks,
> J


--