Discussion:
What is the name of your state? California
Hi. This is a great forum, and a wonderful tool! Thanks for doing this.
Briefly, the situation is this. Myself and two others decided to produce a calendar to be used for raising money for breast cancer research. Without going into details, we had a lawyer prepare a waiver for the photographers and the models to sign, giving us (our names) the right to the photograpsh produced specifially for this. There came a time wherein I was "fired" from the project (I was a volunteer)(and I'd like to add that it had become an ego thing for one of the participants, not me...), and told I was not part nor parcel of any further activities. I had spent some money, but that's not the issue. The attorney on the project quit, as well, because of the same woman. I cannot receive any counsel from him, because it would be a conflict of interest.
Here's the issue.
I've just now been informed that the original waivers were scrapped, and that all models and photographers had resigned the waivers, leaving me off the waiver. However, they are using photographs from the shoots I directed/designed/staged, so they're still my intellectual property (I think). They have also incorped as a non-profit. They are refusing to provide me with a copy of the new waivers, the name of the non-profit corp, and any contact information for their new project attorney (I don't believe they have one).
Here're the questions:
Can I stop the production of the calendar?
Is this copyright infringement, inasmuch of those photographs that I created/directed/staged (but did not photograph)?
What can I do to force the information from them?
Is changing the waiver fraud, or something similar?
Thanks in advance for all the help!
Best regards-
CatLadyInCA
Answer:
Can I stop the production of the calendar? No. As you noted above, you had a partner when the original photos were taken -- so the copyright is vested in both you and your partners (although it would normally belong to the photographer, since you had a contract to transfer rights, you guys had the rights). When a copyright is vested in more than one person (or entity), each of the persons can use, sell, license, transfer, etc. their interest in the copyright without the permission of the other owner, unless that use would destroy the value of the copyright for the other owner. Also, the other owner would be entitled to compensation if the copyright were sold or licensed.
So, in this case, the other copyright owner can authorize the use of the photos in the calender with or without your permission. Since this is a not-for-profit work, there are no profits to share, so it is unlikely that you would get any compensation for their use.
However, you could, as a co-owner of the copyright, use the photos yourself in your own work if you wanted, subject to the restrictions noted above.
Is this copyright infringement, inasmuch of those photographs that I created/directed/staged (but did not photograph)? See above.
What can I do to force the information from them? What information, and why?
Is changing the waiver fraud, or something similar? No, but they cannot eliminate your ownership of any intellectual property (the copyright) without your permission, so you potentially do still have an ownership interest in the photos. However, as I noted above, that doesn't mean you can stop them from doing anything with the photos anyway, so I'm not sure what the point of trying to get "information" or whatever would be.
Answer:
Wow, great response (and so rapid! Thanks!!). Very much along the lines I thought, too (sadly, in one case; I was hoping I was reading the law incorrectly! LOL).
The information I am looking to get from them is the name of the nonprofit, as well as the names of the "directors" and their roles.
Further, I suspect (as it was discussed many times when I was part of the project) that there is remuneration being recieved (for reimbursement of expenses), as well as enrichment (in terms of goods) being recieved from several sponsors of the project, as well. I am not looking to recoup my OOP expenses; those were done in good faith, and I figure it went for a good cause. However, if the rest of the p'nership has received enrichment from their participation in the project, I believe that I too deserve some.
Let me make sure I'm terribly clear on one part of your comments. I remain an owner of the photographs, correct? Therefore, if the demand was made, I should get a copy of all the photographs I participated in creating (from my understanding, there were others that were done after my involvement), yes? And I could reasonably then sell the photos, or use them as I saw fit, and not have an issue of copyright infringement.
I foresee a significant issue in getting these photos from them. How would you suggest I go about explaining to them that I still own them, still have the right to use them, and should be given them in good faith? I expect that whatever communication I make will be ignored at best, and foiled at worst (as they have done in the past with other requests).
Again, I really, really appreciate your response, and the time you're taking with me.
Best regards-
Michele
Answer:
Let me make sure I'm terribly clear on one part of your comments. I remain an owner of the photographs, correct? Well, based on what you posted, yes -- but I haven't seem the wording of the contracts, nor am I privy to your partnership agreement -- facts there could change things -- but as you have written the facts, yes.
Therefore, if the demand was made, I should get a copy of all the photographs I participated in creating (from my understanding, there were others that were done after my involvement), yes? And I could reasonably then sell the photos, or use them as I saw fit, and not have an issue of copyright infringement. In principle.
I foresee a significant issue in getting these photos from them. How would you suggest I go about explaining to them that I still own them, still have the right to use them, and should be given them in good faith? I expect that whatever communication I make will be ignored at best, and foiled at worst (as they have done in the past with other requests). You can't make them give you the pictures. You can ask nicely, you can explain this too them, but if they don't give them to you, the only way you can compel then to give you copies of the pictures is via a court order -- which means taking a case to real court (not small claims court), hiring an attorney, etc. And, without copies of the original waivers, or at least witnesses willing to testify as to the existance and substance of the original waivers, you may have a tought time proving in court that you are even entitled to copies of the pictures. I assume you didn't register a copyright with the copyright office?
Look, unless these pictures are something really valuable or special, give it up. From your post, they are not going to willingly cooperate with you, and the cost of pursuing this through the courts (with NO guarantee of success) is going to far outweigh anything you might see in return (a coowner of a copyright is entitled to share in the PROFITS of the use of the copyright, not reimbursement for costs). Unless you are independently wealthy with money burning a whole in your pocket, taking a stand on priciples in this matter just isn't gonna be worth it.
Answer:
Thanks again for the advice. I realize litigation will likely be a last resort (shouldn't it always be?), but I appreciate the reminder.
I have a few more questions, if you don't mind. And again, thanks for all your previous time and advice.
1. When they changed the waivers and took my name off, didn't that create me as the only known person who is now NOT held harmless in this whole thing? Doesn't that increase my liability immeasurably, as I now am the only one who isn't on a waiver? (And yes, I can produce witnesses, the original waivers, and other "proof" regarding the changeover of the waivers.). If so, what would I do to protect myself? Public notice (or whatever it's called?)?
2. Regarding "profits." Does sponsor gifts, advertising, rebates/remuneration, hard goods, prizes, and other enrichment (ala free stuff which would cost me to receive) include themselves in the term "profits"? If so, is there something I can do to get the Nonprofit to disclose this?
Thanks again! Have a great day.
Best regards-
CatLadyInCA
Answer:
1. When they changed the waivers and took my name off, didn't that create me as the only known person who is now NOT held harmless in this whole thing? Doesn't that increase my liability immeasurably, as I now am the only one who isn't on a waiver? (And yes, I can produce witnesses, the original waivers, and other "proof" regarding the changeover of the waivers.). If so, what would I do to protect myself? Public notice (or whatever it's called?)? I guess I don't understand the problem here -- you are making a calender, not some sort of designer drug -- what kind of liability are you concerned with?
2. Regarding "profits." Does sponsor gifts, advertising, rebates/remuneration, hard goods, prizes, and other enrichment (ala free stuff which would cost me to receive) include themselves in the term "profits"? If so, is there something I can do to get the Nonprofit to disclose this? Yeah, they could be considered profits -- but, like I said in my previous post, if they won't give you information willingly, you'll have to get the courts involved. Unless you are willing to go over there with a baseball bat and demand the information, the only way to compel another entity to give you something is through the courts.
Answer:
I guess I don't understand the problem here -- you are making a calender, not some sort of designer drug -- what kind of liability are you concerned with? I really should've clarified that earlier. Sorry.
The calendar is a sport specific, semi-nude (in several cases, all nude but not frontal nor 'pornographic'; more artistic and non-offensive) calendar. Sort of a serious, sensual version of the Calendar Girls. If it were a calendar for cats, horses, waterfalls, or something like that, I'd not be nearly as concerned as I am. But when you start using real people without their clothes, it becomes a whole lot more concerning. Further, add to that the photoshopping which I know was done, the layout design and the combination of different photos, and I'm just feeling a tad vulnerable.
Add to that we had a minor in some of the modeling stuff (fully clothed, with parents in the room, and a closed, protected, guarded set with additional witnesses inside....and fully waivered, fully prepared, and fully clothed. Did I say fully clothed? She was fully clothed. Fully clothed.)
I honestly don't think we will get sued - at least, the stuff I was participatory in was done in a professional manner, as well as the folks we had used as both the photogs and models were very very very clear about the intent of the calendar. But we're dealing with humans, and if they decide they didn't like the photoshopping or the layout or the "artistic changes" made to themselves, they are more apt to sue than cats or horses.
That's why I'm stressing on this aspect so significantly...the subject matter is touchy at best. And I can see potential for significant issues should someone decide they didn't like how their photo came out.
Does that help?
Yeah, they could be considered profits -- but, like I said in my previous post, if they won't give you information willingly, you'll have to get the courts involved. Unless you are willing to go over there with a baseball bat and demand the information, the only way to compel another entity to give you something is through the courts. Nope, no baseball bats for me. I have no interest in getting violent, no need for that whatsoever anytime at all. Besides, that would be illegal. I'd not like to start the legal things with an accusation of battery or assault.
Again, I realize that actually getting the information may be virtually impossible without some sort of court action, but I am still checking out the parameters of the situation, you know? If it should come to that, then I would just like to know what my options are, what the remedies may be, and what steps should be taken prior to involving a court and lawyers.
And I do appreciate your help, and your clarification. I am not unintelligent, but sometimes the legal stuff confounds me.
Best-
TheCatLadyInCA, Michele
Answer:
That's why I'm stressing on this aspect so significantly...the subject matter is touchy at best. And I can see potential for significant issues should someone decide they didn't like how their photo came out. Okay, I can see where you might be conerned -- but you still have YOUR signed copies of the waivers, correct? Just because the other folks have gone and changed things doesn't mean that the other party's contractual boligations to YOU -- i.e., a covenant not to sue -- are discharged. You still have the waivers, so you should be protected.
Further, from a more practical standpoint, since you've been "removed" fromt he calender project, so to speak, it would seem that you would be LESS likely to be sued if it ever cam to that, simply because you are no longer associated with them.
Hang on to your copies of the waivers, and you should be fine.
And I do appreciate your help, and your clarification. I am not unintelligent, but sometimes the legal stuff confounds me. I don't think anyone would think you were unintelligent -- you seem polite, bright and articulate to me!
Answer:
I don't think anyone would think you were unintelligent -- you seem polite, bright and articulate to me! Thanks...I do appreciate that! Sometimes, though, legal stuff twists me 'round, and I'm not sure I'm understanding things correctly! LOL, but that could be said regarding my life, as well, too.
Okay, I can see where you might be conerned -- but you still have YOUR signed copies of the waivers, correct? Just because the other folks have gone and changed things doesn't mean that the other party's contractual boligations to YOU -- i.e., a covenant not to sue -- are discharged. You still have the waivers, so you should be protected. Actually, um, I don't have the signed waivers. I have, however, copies of the originally written waivers, and the lawyer who wrote them (and then quit) can testify to their existence. Furthermore, should push come to shove, I have several models who've already indicated to me that they signed a second waiver....which, by it's very nature, indicates a first waiver.
Further, from a more practical standpoint, since you've been "removed" fromt he calender project, so to speak, it would seem that you would be LESS likely to be sued if it ever cam to that, simply because you are no longer associated with them. From your lips to God's ears. I don't like leaving myself quite that bare, though. It will be what it is, and I don't think that a court is going to do much to me, but I still wish I had that security blanket of being named in the waivers.
Two more questions, if I could.
How does one register the copyrights to a set of photos that are not in their possession? I've done some reading on the subject, and it seems to me that one needs to issue a copy of the prints (if not a duplicate of them) to the Registrar's office in DC. Any suggestions as to how to do that without the photos? Names of models, dates and locations of shoots, et cetera? I know that they haven't bothered to do that, and I also realize that there is an automatic copyright issued with the creation of the work, but I guess I'm looking for something a tad more tangible (again, should the need arise).
I've also discovered their NFP name, and gotten an address for it. Twasn't difficult, either - a quick search on the internet, under registration of corporations of her state, yeilded that information. See? No baseball bat needed.
My question now is if I wanted to do a temporary injunction (until the waiver issue is clarified, and I am held harmless on paper, and not relying on (non-existent) "good will," would I file it here, in CA, or would I have to file it via proxy in the state of the NFP incorporation? And would it be in federal (likely) or state courts?
Again, thanks for all your help! I really appreciate your time with me.
Best regards-
The Cat Lady in CA,
Michele
Answer:
How does one register the copyrights to a set of photos that are not in their possession? I've done some reading on the subject, and it seems to me that one needs to issue a copy of the prints (if not a duplicate of them) to the Registrar's office in DC. Any suggestions as to how to do that without the photos? Names of models, dates and locations of shoots, et cetera? I know that they haven't bothered to do that, and I also realize that there is an automatic copyright issued with the creation of the work, but I guess I'm looking for something a tad more tangible (again, should the need arise). Well, you can't register the copyrights without a copy of the photos to send to the Copyright Office. Again you can ask for a copy from the current holders of the photos, but if they won't budge, again, you'll need to seek a court order to compel them to give you a copy -- with all of the associated drama I alluded to in my earlier posts.
My question now is if I wanted to do a temporary injunction (until the waiver issue is clarified, and I am held harmless on paper, and not relying on (non-existent) "good will," would I file it here, in CA, or would I have to file it via proxy in the state of the NFP incorporation? And would it be in federal (likely) or state courts? What do you want to temporarily enjoin then FROM, and on what basis?
I still don't understand what the problem is here. Have you been threatened with a lawsuit? Has anyone threatened to threaten you? It's seems like an awful lot of time, effort, and very likely money, to resolve something that may never become an issue in the first place. It seems like it would be a lot easier to gather up all of the paperwork you have, make sure you keep updated contact info on the other company, models, and lawyer, and just live your life.
If something were to happen down the road, THEN you can worry about what you should do -- and what you would do then is either join them into the lawsuit if they aren't already, or file a cross-complaint against them if they already are -- actually, it may not be cross-complaint, I can't remeber off the top of my head if that is the right terminology for suing a co-defendant. Anyway, it seems like that might be a better route if you are not threatened by a lawsuit right now.