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Ask Max Lowry Your Own Question
Max Lowry
Max Lowry, Advocate
Category: Law
Satisfied Customers: 1457
Experience:  LLB, 10 years post qualification experience
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I employed a photographer to shoot products for my website

Resolved Question:

I employed a photographer to shoot products for my website and for use in ads and PR. A number of re shoots were involved which he did FOC but cost me my time and that of help I employed with the shoot. He invoiced me some 3 months later. By this time my graphics designer had contacted me and said she could only use 6 out of the 188 shots for ad purposes and my PR agent could only use 34. I contacted the gentleman by phone to discuss the poor images of the last shoot which he said he wouldn't charge me for, but when I explained that the HI Res images couldn't be used in full he didn't want to discuss things. We arranged that he would come and sit down with me to discuss but failed to turn up. Instead I received a letter asking me to pay the invoices in full (£1050). I have tried to speak with him by phone but he doesn't want to discuss anything face to face or verbally. He just persistently sends me emails demanding the money. I have no problem paying for what I have used - website images and 36 of Hi res images and I have put this in a letter to him and indeed paid him the sum I have calculated. He has refused to be helpful as I've asked him questions regarding my invoices and he left me no options but to calculate myself the images used and pro rata the cost. I believe that I have paid him what I believe I should be paying him, £614.85, that is half the invoice total for the web res images as used on my website, facebook page and places that require web res images, I have then pro rated the 36 Hi res images off the other 50% of the invoice. His brief was to deliver website images and Hi Res images for ads and PR. He has now sent two emails to my PR agency demanding that they delete all the images from their website and also to me. He also says that the images belong to him and I have no right to use them (Copyright Law?) as I've not paid for them (which I have paid part of). I have this evening received an email from him saying that he has been in touch with his solicitor and unless I pay in full I will receive a letter demanding that I take down the images etc and he will further prosecute me. Please can you advise where do I stand.
Submitted: 4 years ago.
Category: Law
Expert:  Max Lowry replied 4 years ago.

Max Lowry :

Hi, welcome to Just Answer. I will help you with your question.

Max Lowry :

Are you of the view that the images are just not of the right quality and that he has not done his job properly in taking them?

Customer:

Yes, The ones I have now are very average and are the result in the main of re-shoots. Others who have viewed them (including other photographers) are either reluctant to use them (PR agency), can't use them (graphics designer) or say they are poor quality. He claimed he was a professional photographer. He was briefed on day 1 of my requirements by me and my graphics designer but only delivered half the brief and this was sub standard.

Max Lowry :

Okay, then yes, if he has done a substandard job, and not therefore used reasonable skill and care in the discharge of his obligations under your agreement with him, then he will have breached this implied term of the contract. As such, you would be able to claim damages from him for it. A pro-rata analysis though isn't always the way the Court would work out what loss you get.

Max Lowry :

Generally, it would be the cost to have the photos taken again, properly, by another photographer. This assumes, of course, that these were not a one off set of photos, and can be taken again. Obviously, in cases like weddings, that's impossible and you only get one shot at it; in this case different principles apply.

Max Lowry :

On the copyright issue, the person taking the photos will be the owner unless you have agreed that you would be the owner. This is so even if you pay fully for them. This is the position under the Copyright Designs and Patents Act 1988.

Customer:

So what do you suggest. No contract was signed and there was no mention of who owned the images, I presumed I would own them as it was my product, my venue etc. I have paid just over half the invoice for all the images that I have used. Should I have to pay for the ones I can't use?? The difficulty is he won't discuss anything - just demands the full amount or else!

Max Lowry :

You only own them if you agree that you would - assuming ownership is no good. I think you can safely say that you can ignore the demand for the substandard photos and have the shots redone elsewhere, and pass on any additional cost to this photographer (over and and above the agreed sum with him) for having to redo the work.

Max Lowry :

There is no need to pay for substandard work.

Customer:

Ok, that seems good, however how do I approach this? Do I send him an email detailing that his work is substandard? the fact is I'm using the web images on my website as I have no alternative at the moment if I want to sell my product. The fact is that we can't use the Hi res ones fully. How should I approach it?

Customer:

Are you still there?

Max Lowry :

Yes .. i'm just reading your reply.

Max Lowry :

Okay - well, did you sign a written contract with him?

Customer:

No

Max Lowry :

Okay, then you're technically going to be in breach of copyright.

Max Lowry :

He could claim for that against you too.

Max Lowry :

Can you get photos in place from somewhere else quickly to use?

Customer:

No. I can with draw them from my website etc but now I've paid the money

Max Lowry :

You've paid some of the money ...

Max Lowry :

And .... you don't get the copyright simply because you pay for it. You have to agree to get the copyright, otherwise, it remains in the person that took the photo.

Max Lowry :

You could argue an implied agreement though, but it can be hard to argue this in practice, as it's a commercial context, it's not like a person wedding etc.

Customer:

Yes, I paid today and sent a letter explaining the calculation etc as I mentioned above. He wants £1050.00 and I have paid him £614.85 less what he owes me for product he bought from me.

Max Lowry :

Okay, what you should do is remove the images from your site until you resolve the issues with him. The truth is, he probably wont care what happens after you've paid for them, but the point is that he still is likely to own the copyright at the moment, and could sue you for compensation for their use.

Max Lowry :

It depends what you want - do you want to keep the photos your using at all costs?

Customer:

Then what, as he won't discuss further with me. From his view I should pay him in full. If he won't discuss anything further then I have no images on the website and he has a good deal of my money!

Max Lowry :

Your best approach here is likely to be this:

Max Lowry :

1. Tell him he isn't getting paid for the bad photos;

Max Lowry :

2. Tell him that you're getting somebody else to do the photos again that were no good;

Max Lowry :

3. Tell him the likely cost for those new photos (hopefully, this will extinguish the remaining debt to him);

Max Lowry :

4. Get somebody else to do them again for you. If this costs, say £1200, then you would be entitled to sue him for the £1200 - £600 (being the balance due to him, as you would have paid this out). The idea is to not be out of pocket, but not to profit either from your claim.

Max Lowry :

5. Do a deal with him wereby you pay him, say £200 or so, a term of the settlement would be that you get all the copyright in the items. That way, it's clear, easy and you're safe.

Max Lowry :

Yes, it'll cost you more than it should have, but at least you'll have the right photos, and you'll be certain you're entitled legally to use them, as you'll have agreed that you own the copyright - with both photographers.

Max Lowry :

There is an argument that you have impliedly agreed that you would own them - but, I don't like this argument, it's difficult to run in a commercial context sometimes.

Customer:

Ok, somehow I don't think he'll move, I have an awful feeling that he'll just demand the money in full or take me to court! I'll try an email again, but otherwise I don't believe there's anywhere else to go as such?

Max Lowry :

Not really I'm afraid. It's always best to be clear with written agreement to avoid these issues, but you're in the small claims system if he does sue you, so it can't go that wrong, and there is no risk of costs against you.

Customer:

Do you mean if I loose I don't pay a thing?

Max Lowry :

If you lose, you pay the claimed amount (assuming the Court rules against you on all of it).

Max Lowry :

You wouldn't pay legal costs - which is usually the most expensive part of most litigation!

Customer:

OK, by the time it comes to court another photographer will have re -shot the products anyway. I have already told him that his images will be removed as soon as the products are re shot. The only thing then is that 6 have been used in ads already

Max Lowry :

Well, you can't undo what's been done, you just have to see what happens about that, the ball is in his court.

Customer:

Ok thanks for your time

Max Lowry :

But, I reckon you'll be able to do a deal quickly to get rid of him, and make sure you make it clear that you own the copyright when you do.

Max Lowry :

You're more than welcome. Please remember to rate me as highly as you can. I'll gladly assist in the future if you need more info.

Customer:

Thank you . To clarify, I'll send him an email to try and do a deal, stating that I shouldn't have to pay for the hI Res images I've not used and offering him some money to give me copyright over what I have.

Max Lowry :

Yes, exactly that.

Customer:

Ok Bye

Max Lowry :

Thanks - goodnight.

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