I'm a photographer that recently went into a project with a publisher & author. The author hired me to shoot video & photos, some of which would be on a cover. She signed a contract with me & had paid for photos.
Her publisher had contract with her & models (I assume for them to commit & perform their duties).
When time for the handing over of photos for the cover came the publisher was unhappy that I'd only give the one photo per cover and demanded more. I refused and the publisher now is threatening to sue to have the rest of the photos. In my contract with author I state I own exclusive rights to photos, stills & video. I never signed any contract with publisher.
Does the publisher have a case?
Yes. The publisher had an oral and "implied in fact" contract relationship with you. That's not enough to transfer copyright OWNERSHIP, but it'ss enough to enforce an implied LICENSE to get the photos and video from you. I base this on your use of the of the phrase "went into a project with the publisher" and also on the fact that you used models they hired, so they partially financed this photo shoot, while the author partially financed it.
If your contract with the author said that you owned the photos and video, then copyright law agrees with you, you only sold your photography services, while retaining the rights in the IP itself. But that's not what your query says. It says "The author signed a contract with me and had paid for the photos." That sounds like this was an employment situation, and she owns the photos.
At any rate, whether she does or not, the publisher seems to have an implied license to use (but not own) this IP.
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7 lawyers agree
Patent Application Attorney
WHAT DOES THE CONTRACT STATE? The contract is what governs this relationship and reciprocal obligations. Most contracts are work for hire type, therefore the IP is owned by the payor, not the photographer. Your case seems to be different.
Thew author may have a contract with the publisher surrogating obligations and or benefits.
If you own exclusive rights, why would the author pay you? The author must have a license, at least, then you do not have exclusive rights.
An attorney needs to read your contract as your question uses contradictory legal terms.
Contracts need not be in writing to be enforceable, as the parties may agree orally and perform the spirit of the agreement and then you have a contract.
The reason you do not want to give the publisher is money, but there is also the issue of reputation. What is the cost of branding you a difficult photographer? Remember, the industry is very small and words gets out.
Resolve this issue promptly as you may loose more than money.
USPTO Registered Patent Attorney, Master of Intellectual Property law, MBA I am neither your attorney, nor my answers or comments in AVVO.com create an attorney-client relationship with you. You may accept or disregard my free advice in AVVO.com at your own risk. I am a Patent Attorney, admitted to the USPTO and to the Florida Bar.
Intellectual Property Law Attorney
Yes, the publisher has a case, although I see it as a losing case. Still, the publisher's case has a reasonable basis that would likely prevent summary dismissal should the publisher sue you. Attorney Koslyn explains very well why. I also think you have good defenses to such a suit, namely (1) your contract was only with the author so arguably you have no contract with the publisher, express or implied; (2) the publisher contracted with the author, not you, and thus the publisher's claim, if any, is against the author not you. Now, you admit you knew the author had a contract with the publisher and apparently supplied the models, so you knew this shoot was for the benefit of the publisher, hence Attorney Koslyn finds an implied contract. I think, however, that the contract you have with the author likely spells out how many photos per cover are to be provided by you, and since you refuse to give more than one, I take it the contract says the author only gets one photo per cover. If so, then I think the situation is likely that you are in a position to insist that the author has to pay you for additional photos if the author is obligated to provide more than one to the publisher. If the contract says you provide the author the proofs then you need to do that. Now, aside from the legalities you need to evaluate what is in your best business interest, keeping in mind the 2 cardinal rules of customer service: (1) the customer is right, (2) if the customer is not right, see rule 1. Remember, while you don't want to be a doormat or lose money, there are other photographers and it may be in your long term interest to play nice and not to piss off your customers. WALMART has found that it is good business to agree with complaining customers so they come back and don't go elsewhere.
Bottom Line: Yes, they have a case. One that if you win the battle you likely also lose the war.
So far, this is free to you. Until you pay a fee, I am not your lawyer and you are not my client, so you take any free advice at your sole risk. I am licensed in IL, MO, TX and am a Reg. Pat. Atty. so advice in any other jurisdiction is general advice and should be confirmed with an attorney licensed in that jurisdiction.