Photographer Prevails in Wedding Lawsuit

In November of 2009 we posted Wedding Photography Contracts - A Cautionary Tale - about the risks on assignment, as well as the possibilty of a tarnished reputation when things go south. Photo District News posts today - Blushing Bride Loses Underwear Photos Lawsuit - with the update that the photographer prevailed in court. The problem now, is that "One of the Best 10 Wedding Photographers" (according to his website, ranked by American Photo) has to restore his reputation, tarnished by this brides's suit.

Reading all the links above serve as a good reminder of the risks to our business by clients who feel wronged, even, as decided by the court in this case, the client was wrong.

Thus, ample proof that the client isn't always right. Want more insights into this?

The Client Isn’t Always Right: Dealing with Abuse as a Freelance Writer

Just Say No: Three Reasons the Customer Isn’t Always Right

10 Freelancer Mistakes that Damage Your Success

(Comments, if any, after the Jump)

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Morel v. AFP, AFP v. Morel - Which Way Blows the Wind?

Much has been said critical of Agence France Presse (AFP), and Twitter (and the unrelated yet seemingly related site TwitPic), in the case where, in the early hours following the devastating earthquake in Haiti, photogapher Daniel Morel "tweeted" 13 of his photographs to the outside world via the TwitPic network, and AFP distributed those same photographs to their worldwide network of customers, without compensating Morel for their use of his photographs. To date, much of that criticism has been directed towards AFP and TwitPic/Twitter, admonishing them because they "stole" the photographers work.

To the contrary.

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Morel signed up for a TwitPic account, which is free, and which has a lengthy set of terms and conditions under which he may use the account, and further, what TwitPic may do with material he transmits across their network (text or visuals). He agreed to these terms and conditions. Whether he conveniently forgot what he agreed to, or whether he never read them before clicking the metaphorical "I accept TwitPic's Terms and Conditions" button, the photographer is in the wrong. TwitPic has a network, and the tangent to TwitPic has a network, Twitter, which is bearing the brunt of this suit, and alleged wrong-doing. They both provide the service for free, for reasons that are mostly unknown right now. It may be that they are mining data from tweets about trends in society, age groups, or otherwise taking the pulse of the collective consciousness, and that may be a marketers dream data set. However, the Twitter network spends millions of dollars a year to operate itself, and in exchange for making that multi-million dollar network available to it's users, Twitter gets rights to content it carries over it's proprietary network. Their conveyance of those rights to third parties - in this case AFP, is perfectly within the bounds of their rights, and Morel is out of line.

Jean Francois Leroy, the Director of Visa Pour L'Image has a similar take on this. Over at Duckrabbit, (here) they use similar language - "AFP took Morel’s pictures without the photographer’s permission" and "they thought the photos belonged to somebody else". The operative word in the first quote is "took", and it's wrong. "Took" implies without permission, and they make it clear that's what they meant, when they say just that. The fact is, Twitter's T&C give AFP permission, granted to them by Morel, when he accepted them as a condition of his use of Twitter.

Leroy was quoted as saying:

"Anyone who puts images on Flickr or on Twitter, and then sees them being used, well too bad for him… a photographer should never put his images on a social networking site. If you put your image on Twitter or Flickr and find that it’s been stolen by someone else, well… tough. You can’t ask me to defend you. What I’d like is for all photographers reading this is that they stop putting images on such sites."

The only objection I would have to that quote is that Leroy characterizes the action as "stolen", and, as I have detailed above, AFP did NOT steal them, they have a license (permission) to use them. Otherwise, Leroy is spot on.

What if Morel had been smarter about his images, and used the internet to transmit his images to, say, a service like Photoshelter, where people can access and license images immediately, and which are search-engine friendly so the photos get found easily? They might not have seen the distribution and publication depth and breadth that they did because AFP has thousands of subscribers worldwide, but Morel would have maintained control of the licensing of his images, and likely profited significantly from controlling his rights.

I stand with Leroy, and common sense - don't use free internet services when your own intellectual property is at risk. Not only do you risk losing control of your work, but also, it's just not professional.

For those of you curious, here are the respective Terms of Service (i.e. the terms under which you may use the service, and further, agree to):

From Twitter's TOS:

- You may use the Services only if you can form a binding contract with Twitter

- The Content you submit, post, or display will be able to be viewed by other users of the Services and through third party services and websites...You should only provide Content that you are comfortable sharing with others under these Terms.

- You retain your rights to any Content you submit, post or display on or through the Services. By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).
- You agree that this license includes the right for Twitter to make such Content available to other companies, organizations or individuals who partner with Twitter for the syndication, broadcast, distribution or publication of such Content on other media and services, subject to our terms and conditions for such Content use.

- Such additional uses by Twitter, or other companies, organizations or individuals who partner with Twitter, may be made with no compensation paid to you with respect to the Content that you submit, post, transmit or otherwise make available through the Services.

- We may modify or adapt your Content in order to transmit, display or distribute it over computer networks and in various media and/or make changes to your Content as are necessary to conform and adapt that Content to any requirements or limitations of any networks, devices, services or media.

From TwitPic's TOS:

- By uploading your photos to Twitpic you give Twitpic permission to use or distribute your photos on Twitpic.com or affiliated sites

- you retain all of your ownership rights in your Content. However, by submitting Content to Twitpic, you hereby grant Twitpic a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Content in connection with the Service and Twitpic's (and its successors' and affiliates') business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each user of the Service a non-exclusive license to access your Content through the Service, and to use, reproduce, distribute, display and perform such Content as permitted through the functionality of the Service and under these Terms of Service.

What part of that's not clear? Photographer “A” delivers images to party ”B” (TwitPic and then Twitter) and in doing so, accepts terms expressly providing that party “B” has the right to sublicense his work to third party/ies “C”, then the photographer must abide by terms to which he/she agreed. As to Party "C" being Lisandro Suaero, who downloaded the images from TwitPic and reposted them on Twitter under his name (see FastCompany article here for this gem of information), nothing in TwitPic's terms require photo credit, let alone, an accurate photo credit. Setting aside Suaero's ethical breach for taking credit for someone elses' work, AFP has obtained their rights from Twitter who legitimately got them from Twitpic who legimiately got them from Morel. AFP did the right thing, as they learned that Morel was in fact the photographer, and not Suaero, so they corrected the photo credit to attribute Morel. Morel is not some newbie, or someone unschooled in how to transmit photographs - he used to be an employee of the Associated Press as a photographer, so any claims of "I didn't know..." will, for me, fall on deaf ears.

Any questions?

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Related:

AFP sues Morel for defamation (PDF)

BJP - AFP v. Morel: The debate rages on

BJP - AFP v. Morel: The Important Questions

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Property Releases - Not Necessary One Court Rules

For years, it has been espoused that, in order for you to use someone else's property in a commercial way, you needed permission from the owner of that property in the form of a Property Release, much like a Model Release. No so, says the U.S. District Court in Northern California, in a rare case that likely will have far reaching consequences.

In the case of Robinson v. HSBC USA, Mr. Robinson's home, an often-photographed Victorian-era home in San Francisco, was used in advertising for the HSBC bank. (Read the decision here). The case, interestingly enough, was brought against the bank, one can assume, because they had the deep pockets for an award, as opposed to being brought against the photographer, who had far shallower pockets than a multi-national bank.

The front of the brochure, is at right, where Robinson's home is the yellow one.

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With the court's decision, it was dismissed "with prejudice", which barrs Robinson from bringing another case on the same claim. At right is the inside of the brochure - a second use of Robinson's home.

Over at the Property, Intangible blog, there is an excellent dissection of the case by an intellectual property lawyer that's well worth the read. Carolyn Wright, over at A Photo Attorney, discusses that there is almost no need for property releases in the United States, and she writes a bit about it here.

Essentially, there was no libel or defamation, nor even the suggestion that Robinson had a home loan with HSBC. Further, there was no trademark issue (like a logo visible in the image), nor a copyright issue. Further, the image was taken without trespassing on private property.

While I'm not a lawyer, and further, this isn't legal advice, it seems that unless you're going to use an image of someone's home and say "hey, here's a great place to open a brothel", or "this house looks like a crack house", a property release isn't as necessary as we have all been led to believe in the past.

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Wedding Photography Contracts - A Cautionary Tale

As PDNPulse recapped here a New York Post article here, a bride has filed a lawsuit in the Manhattan Supreme Court alleging she instructed her photographer, of the highly regarded wedding photography studio Christian Oth Photography, to refrain from taking photographs of her while getting ready, and in some degree of undress.

The suit also alledges that Oth posted the photographs, according to PDN for "all to see." So the question is - what are the photographers rights and obligations? Let's take a multi-facted look at the circumstances surrounding this issue.

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First - let's assume, just for the moment, that the allegation of the bride is true, in that photographs of the bride in some state of undress/preparation, are online and viewable to the public. Since Oth no doubt had the bride and groom sign a contract, the contract most likely includes the right granted to the studio for them to be able to use images from the wedding for promotional purposes. The sample contract made available by the Professional Photographers of America (here - membership required) to its' members, includes the clause:

"The Studio/Photographer reserves the right to use negatives and/or reproductions for advertising, display, publication or other purposes. Negatives and previews remain the exclusive property of this Studio/Photographer."

Thus, if the images appeared on Oth's website, and Oth used recommended contract language, they would be legally covered.

The second statement that the bride alledges, is that (according to PDN) the photographer was ordered "...to refrain from taking photos of her in a state of undress but that the photographer kept snapping away anyway." However, there are no stipulations in the contract for this to take place, if Oth used the standard PPA contract. Two terms would cover this:

"It is understood this Studio/Photographer is the exclusive official photographer retained to perform the photographic and/or video services requested on this Contract."

and this term:

This Contract incorporates the entire understanding of the parties. Any modifications of this Contract must be in writing and signed by both parties.

Thus, the bride could not modify the contract verbally with an "order", and this is again, assuming some variation of the PPA recommended contract was used.

Oth has responded to the PDNPulse article, with a statement (in PDF form) here, and makes the point that "We have never posted any images of Mrs. Bostwick on our public website or any other public venue. Client images, such as Mrs. Bostwick's, are posted on our proofing website and are always password protected." Some research shows that Oth uses Pictage, long considered a leader in providing online galleries and proofing/print ordering for wedding couples. Oth's studio page on Pictage is shown here. As someone who has in the past used Pictage for all manner of client deliverables (including weddings), I can say that the back-end ability to limit public viewing is very powerful.

Pictage recommends that the bride and groom be given "owner" status of their galleries. As such, the gallery would be transferred to the owner, and the owner in turn has the right to "make private" images they don't want their guests to see (yet they can still see.) As such, before the owner releases the images to friends and family to browse, they have had the ability to edit their gallery of images. At all times, owners, friends and family either have to log-in, or have a password to establish an account specific to that gallery and then log-in, before being able to see images. In the end, Pictage has the ability to protect client and end-client images very well. While it is possible for a Pictage user like Oth to have granted "public" access to a wedding, it is made very clear that you are choosing this option when you are setting up an account, so I would doubt that this was the case.

As someone who has photographed weddings, (and as a male), my discussions center around "the bride putting the final touches on her gown", which usually refers to primping and the affixing of the veil/train, just before dad comes in to see his daughter. This time is usually where a few candids of the bride with bridesmaids, and so on can be made, and those images are nice for the beginning of the album. For a female photographer (and I am guessing here), it might be normal/more comfortable for her to be in a bit earlier when there might be a bit more being revealed, as could have been the case given that the Oth photographer is Carolyn Monastra, almost certainly a woman.

So, with the assumptions regarding legalities and likelihoods out of the way, what remains? Reputation. The Knot has a forum post here with praise for Oth, but as this lawsuit makes the rounds, it could show up on the boards. With the article on the New York Post, it wouldn't surprise me if more than one bride/groom who was considering Oth has opted for another photographer. For those who have already signed a contract, they could well be contacting Oth for assurances, or making attempts to get out of their contracts. With Pictage listing Oth weddings in the $3,001-$5,000 range, this will likely have an economic impact on them even if the suit is dismissed in short order.

Could it be that the bride was unhappy with the results, or wants more for free? Of course - both of those things happen frequently. Thus, this could just be a way for an unhappy bride to get back at the photographer. We won't know, of course, until this is settled, one way or another.

In the end, it is imperative in this world where clients are expecting white-glove treatment at every turn, and reputations are on the line, that contracts clearly spell out what's allowed and what's expected. Further, with Oth, who was likely sub-contracting photographer Carolyn Monastra making sure that vendors are customer-service focused is key. It may be that Monastra and the bride were just being light-hearted about it, or perhaps all was well in the beginning and Monastra did not get direction as the bride suggested, but later the bride decided to revise history. Either way, it is imperative to listen to what the bride is - and is not - telling you. I submit that scantily-clad images of a bride are likely of little use for a wedding album that you'll be showing the parents/in-laws, and eventually your children, so don't bother shooting them until it's all about the "final touches" and the makeup check in the mirror.

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