Derivative Work-Retouching?

[dazzlement]

Does Retouching count as a derivative work? I worked with a photographer, we went into business together with her doing the photographing and me doing the retouching on top of everything else all under one name. I did extensive editing on the photos, made the models flawless, changed backgrounds, etc. Now we've dissolved the business and the clients (which were mostly her friends) all of a sudden say I'm not allowed to use the pictures for my portfolio. There were no contracts involved for any party, and I have an e-mail from the photographer stating I could use the pictures we did together as long as I credited her photography. I did that, and I also took the girls pictures down just out of consideration. But now the photographer is posting pictures we did together and calling them her own without any credit to my retouching. She never even touched the photos after she took them. They were immediately downloaded on my computer and she received the retouched photos. It was not until after we dissolved the business that she got all edited and unedited photos. Does she have a right to do that? I understand that she took the photos so she has copyrights to them, but do I not have any rights since we were working together? She is now my competition since I am now doing my own photography and offering retouching services and we live in the same area, I worked with her for about 9 months and feel like all I did was contribute to her portfolio and rarely even got paid for it. I barely have anything for my portfolio now since that's the first time I got to do work professionally. And it also looks like her work is really good when she barely even knows how to use photoshop. I tried to read copyright rules but I can't make much sense of it. I appreciate any input. Thanks!

[mistermonday]

Dazzlement, welcome to RetouchPro. Sorry to hear about your unfortunate situation.
Regardless of who owns the copyright, if the models / subjects in the photographs do not provide you with a Model Release or other legal document that grants you the rights to use their likeness, then you don't have a leg to stand on.
As far as you receiving recognition as the retoucher on the final work / print / publiction, that is not normal. Of the zillions of photos you see in magazines, ads, newspapers, journals, etc, when was the last time you ever saw a retoucher credited? Only the photographer ever gets the mention.
As a retoucher, if you do not have a contractual agreement with the image copyright holder, granting you some rights, then you have no rights to use the original image or its derivatives that were retouched by you.
If your business was registered and had a legal name, and if that business had legal rights to the images, and if you were a true partner in that business, you might have some recourse in a court of law. However, I doubt that the effort would be worth the trouble and the cost.
You are probably going to have to consider this experience as one of life's teaching moments, and move on.
Best wishes, Murray

[dazzlement]

Thank you for the reply, I currently have contracts in place now that I am on my own and figured I would have to chalk this up to a learning experience as much as it hurts my feelings and hurts my business currently. But lesson learned and it won't happen again. Just going to build up my own portfolio and hope my own work stands for itself. :O) Thanks!

[shift studio]

I'm not an authority, but as I understand it, Mr. Monday is 100% correct. I just thought I'd reply that your story makes me really angry at this photographer. What an a$$!

--shift studio.

[dazzlement]

Thanks shift studio, I'm very frustrated by the whole thing but I've learned a lot and I'm hoping it will make my own business better in the end. Can't let it get me down. I've calmed down since the whole thing happened but I wanted to get some facts. Even though they are not in my favor I now know how to protect myself in the future. And I believe that I will get better work in the future anyway, her photos were horrible to work on! A challenge goes a long way in a learning situation lol. Thanks again!

[ftp-Jeff]

I only insist on credits if they are cover shots, but to be honest, that has always been offered. When my work is in the big publications, they always drop a credit in for me.
The smaller publications are a different matter.

[creativeretouch]

This is very interesting question. It depends in which country you work. Each country has different copyright law. I remember once I have read that if you will take a piece of work (photograph for example or Idea) and you will manipulate it - you will create a pretty new artwork and it is legal. There are also "collective copyrights" where you share the copyright with all creators. For example Make-up Artists never ask for copyrights but they bring a lot to a final picture. Also different situation is if you are employee of the company and you will create final work as a part of your job or you are independent, self-employed artist.

[dazzlement]

Thank you for your replies, I am in the United States, I don't know if that makes a difference. I have pretty much just chalked this up to a loss and am currently just trying to build up my own portfolio. She pretty much slandered my name to everyone she knows, I guess to make herself feel better, considering I did all of our advertising, website, business cards, print orders, etc, on top of the retouching. She had dropped the percentage I got per shoot down to only 20% from half because I decided not to go to the actual shoots since it took up even more of my time. I didn't think that was fair, so that's pretty much why we dissolved the business. She didn't understand how much work I was putting into it when all she did was press a button for a couple hours per shoot. I just hate that I did all of that work for practically nothing. But I did learn from it, I now have my own website, advertisements, contracts and experience from the whole deal. Thanks again!

[Cathy Duncan]

Dazzelment: hmm, it’s really sad to know your story dude! You must get yourself secured because the same thing has also happened to me in the past and I did learn loads of lessons out of it.

[PhotoComix]

well you may have some weapons to use to get a honest deal

First if you worked long for somebody (so not as occasional free lance) and you may proof (regular payments that left traces as example)..well or you had a contract or your ex "boss" is in a very bad position

This may change from country to country but usually give to someone a job without a regular contract at least means fiscal fraud (same offense that allowed FBI to finally jail Al Capone,) and tax office have excellent lawyers.

good motive to be more reasonable and find a "friendly" agreement..i don't know US law but here if you were a employer you was not a associate in the legal offence but a victim

then if the images were already online from long in your portfolio, you have ground to sustain that that was part of your accord.

And if she want that removed is not you but her that has to found a lawyer and go to court with all related cost

Again i don't know US laws..here where i live i would easily put a similar "boss" in a very bad positions...

[dazzlement]

Thanks photocomix, she wasn't my boss and it was all freelance work so I really don't have any grounds to stand on. But I'm getting work on my own so it's working out pretty well!

[borkiss]

I don't want to start a new thread, because I have similar to the OP's problem...
I am from Europe, so I am not sure what are my legal rights, but here's the situation:
Photographer asked me for preforming retouching services on his photos and as I work on "trust basis" I didn't said anything about pre-payment, we just agreed that he will pay me after the work is done. So I retouched I lot of photos for him and in the end he didn't pay me. The worst thing is that he started to lie me that he is outside of town, then he is sick, and that's why he can't make the payment, and so on... but he likes my work soo much that he wants me as his primary retoucher, to cancel other appointments and work only for him.. I was happy and I started to cancel any other jobs and at the end I've found myself without money, without other work and with 3 weeks wasted.
We didn't have contract, I have all the correspondence between us and how he promised me some-amount-of-money per photo and I sent him an invoice in paypal, asked him many times to pay me and he didn't.

So after I'e got scammed I wrote about this in my blog, mentioning the name of the photographer, to warn other retouchers. I found on the internet other information about this person from other people that got scammed from him and provided this information in my blog.
Now he writes me that I have to delete all the postings. Also, I can't use any of the pictures retouched for him. (I don't mind about the last one)

I want to ask you - do I have any rights as the retoucher, to ask him not to use retouched by me photos? I keep all the original PSD files with all layers, proving that the retouch is mine. Especially if he didn't pay me for the retouching? We are both in Europe. How is the copyright law treating this kind of situation here?
Also, in the absence of a contract, doesn't he as an employer bear a greater responsibility? Does he have any rights to forbid me from using the retouched photos? And finally - can I sue him and on what ground?
Thank you!!!

P.S. I apologize for the "English"

[ftp-Jeff]

Well.... It happens all the time...

You have to be professional about these matters, to cover yourself.

Looking at the way you handled it, I am not surprised it happened. And he will probably do it again to someone else.

This is a class that I offer my students.. It is no good being a good retoucher, if you cannot get paid.

Jeff

[borkiss]

Yep and I will know for now on how to proceed with the next clients (this was one of my first clients btw).

I hope he won't do this to anyone else, because I wrote about this on my blog, mentioning his name and with links to other websites and complains from other people. Now he threatens me that he will sue me, because I wrote that hi is a scam and he wants to remove this posts from the blog. Other people contacted me, mostly models, to tell me that he scammed them as well, promising to give them the photos he makes of them and then he disappeared a refused to give them the photos.
Do you think that he has a legal right in that case. I mean - can he make me to remove my blog posting which are exposing him as a scammer?

Thank you!

[borkiss]

Also, when I retouched the photos, I uploaded them on my website with proper credits to the photographer. After I fount out he is a scum I wrote blog posts about this with his name.
Then he wrote me that I must remove the photos because he didn't gave me any permission to post them and I removed them immediately. Now he claims that he can sue me regardless of the photo removing because he has screen shots of my website and his photos. Does he has legal ground to do this? I removed his photos after he asked me.

[creativeretouch]

Originally Posted by borkiss

Also, when I retouched the photos, I uploaded them on my website with proper credits to the photographer. After I fount out he is a scum I wrote blog posts about this with his name.
Then he wrote me that I must remove the photos because he didn't gave me any permission to post them and I removed them immediately. Now he claims that he can sue me regardless of the photo removing because he has screen shots of my website and his photos. Does he has legal ground to do this? I removed his photos after he asked me.

He shouldn't use your work without your permission as well. Does he use his photographs retouched by you on his website or anywhere else?

[borkiss]

Yes, he uses the photos on several websites, plus some of the photos were for commercial work, and he didn't pay me for the retouch but he sold the retouched photos and now they are used in the company's website, advertising their product.

[creativeretouch]

Originally Posted by borkiss

Yes, he uses the photos on several websites, plus some of the photos were for commercial work, and he didn't pay me for the retouch but he sold the retouched photos and now they are used in the company's website, advertising their product.

So, ask him to remove his photographs from these websites and tell him you will contact his clients asking them to stop use your work as photographer doesn't have a license to use your work (I expect you didn't give him any license).

[borkiss]

I didn't gave him nothing, but he claims that he holds the copyrights of the photos and even they are changed by me, he can do whatever he wants with the pictures. I asked for legal advice from a lawyer in my country, but I want to hear your opinion as well.
And about the blog post with his name and the word "scam" - what do you think, should I remove it? Thanks!

[creativeretouch]

Originally Posted by borkiss

I didn't gave him nothing, but he claims that he holds the copyrights of the photos and even they are changed by me, he can do whatever he wants with the pictures. I asked for legal advice from a lawyer in my country, but I want to hear your opinion as well.
And about the blog post with his name and the word "scam" - what do you think, should I remove it? Thanks!

I would contact a lawyer in your case and I would remove these words ...

You are a part of a creative team and you should own some kind of rights as well. This photograph isn't a product of a single person (photographer) but this is a team work ...

[borkiss]

Yes, but we don't have any contract, I only have the psd files with the layers and the original photos and the e-mails. Also, he has made screenshots of the website and he claims that even I remove the postings, he will sue me because of the screenshots. I will wait until my lawyer replies.

[creativeretouch]

Originally Posted by borkiss

Yes, but we don't have any contract, I only have the psd files with the layers and the original photos and the e-mails. Also, he has made screenshots of the website and he claims that even I remove the postings, he will sue me because of the screenshots. I will wait until my lawyer replies.

Take screenshots of his websites as well and try to get his client's contact. But wait until your lawyer will reply.

[borkiss]

I already did it, thanks
P.S. I don't think that screenshots are any proof, because they can be modified as any other digital object (photo, audio, video). I will write here about this problem, the lawyer's advice, etc, in case someone else is interested or have the same problem. The worst thing that could happen is we both waist our money and time and all this for nothing.

[borkiss]

Ok, my lawyer said... I will try to translate it in English, but it was something like this:
"From experience I have, I guess the photographer wont file charges and he is just trying to scare you, also his statements and charges are very difficult to prove. If he sues you, the case will be transferred to your country, but for this he has to send you an invitation and he does not have your address. If the case is opened it will take place in your country and I will take care of your protection. For now, don't answer him and don't worry, he can't do anything"

So.. that is for now, to be continued..

[creativeretouch]

That's a good news ... pls. keep us informed ...

[borkiss]

About my blog posts, my lawyer said that "you can write whatever you want in your blog, if you have evidence that it is true."

Also, to anyone who is threatened with court from a person in another country in EU, you should know, that even the applicant (in this case the photographer) does not have your real address, he can have your real address with court order between the Ministries of Justice in his and your country, in which case there will be international cooperation between police of both countries and this way your IP address can be traced. But this will take a lot of time (and money). For a case to be opened and a person to be sued, there has to be invitation to appear before court, and for this - the person who sues you needs your real address (which is the address on your ID card). I am sorry, I can't translate the things my lawyers said to me very well, because there are many legal terms which I don't know in English. But the big picture is - the photographer does not have any legal claims against me and if he sues me, I will win. I have more reasons to sue him. He threatens me because of the blog post about him. When you type his name in google, my posts appear on first page. Apparently, some people saw this and didn't want to work with him. Poor guy, he can't lie and steal from other people anymore *irony*

[Repairman]

Send invoices to the end-user client using your work on their website. Tell them to pay up or remove the images. It's not worth you pursuing it in financial terms but It'll make the photographer look like the unprofessional twat he clearly is.

[mistermonday]

Originally Posted by Repairman

Send invoices to the end-user client using your work on their website. Tell them to pay up or remove the images. It's not worth you pursuing it in financial terms but It'll make the photographer look like the unprofessional twat he clearly is.

Repairman offers excellent advice. In other business, especially high tech, when there is a patent infringement, the injured party's first response is often to go after the offender's end customer because that that gets very rapid response and attention. End customers run for the hills if they believe they do not have indemnification for items they have purchased or licensed, especially if they are reputable businesses or individuals.

You have no legal agreement / contract with the photographer so you don't really have a leg to stand on. The original photos are his intellectual property and you do not have any rights to it including keeping a copy that you have acquired, whether he sent them to you or not. The photographer assumes that it will be significantly to your detriment financially to pursue legal action. So your best bet is to try the route that repairman has suggested.

Good luck with the resolution.
Regards, Murray

[ChristopherGFX]

Yeah, ironically if you traced the picture with a pencil you'd have rights as an artist, but retouchers are second-class citizens when it comes to copyrights. This is why you need a signed contract to give you rights and release you from work for hire.

Contracts are a pain, but clients will let usually let you charge them a fee for the proposal/planning, or you can call it a 'membership fee' or some other creative jargon.