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socrateaser
socrateaser, Attorney
Category: Business Law
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Experience:  Retired (mostly)
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Im a professional photographer. My customer had me send his

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I'm a professional photographer. My customer had me send his photos to my retouching artist to have them professionally photoshopped. I work on the Honor Method for payment, but once the work was completed, he continually made alibis not to pay his bill. After a month, I send him three email requests for payment, finally giving him a final deadline for payment before I permanently deleted all of his work and paid the retoucher out of my own pocket just to keep our relationship intact. That deadline has passed, and now he's demanding his retouched photos, after I had paid his bill myself and destroyed all of his photos as I had warned. Does he have any legal rights to sue me for anything?
Submitted: 1 year ago.
Category: Business Law
Expert:  socrateaser replied 1 year ago.
Hello,

Are you talking about deleting digital files (.jpg; .tif; .gif, etc.) -- positive photos, or original negatives?

Customer: replied 1 year ago.

I deleted the retouched digital files. I still retain the unretouched files, but if he wants his photos now, he will have to now pay me DOUBLE—


the charges I have already paid out of pocket, and the same fees to retouch his photos all over again.

Expert:  socrateaser replied 1 year ago.
Okay, thanks. Let me see if I can break this down for you.

X contracts with Y to have Z perform services on behalf of X. When Y agrees intermediate between X and Z, Y becomes X's agent. An agency relationship creates a duty of loyalty, good faith and fiduciary in Y toward Z. Breach of the duty makes Y liable for any damages sustained by X.

Here, X never paid Y for any services as agent, nor for any charges sustained by Y in pursuit of the agency on X's behalf. Therefore, while X has a theoretical claim against Y, without any damages, there is nothing to claim, and so the most that a court could award X would be nominal damages ($1.00).

However, were X to have some impending deadline to meet, whereby damages would be sustained were Y not able to deliver Z's services promised as part of the agency, then X would have a damage claim against Y, for breach of loyalty, because by destroying the result of Z's services, Y has definitely breach his/her duty to X.

The defense that X has not paid for Y's services may or may not prevail. The issue would be as to the intent of the parties in the creation of the agency, and that intent is not entirely clear. This makes for a very fact-centric litigation, and that means a trial, and trials are expensive (though we're probably talking about small claims court, because of the claim amount (less than $5,000.01). So in this particular case, the expense of a trial is trivial).

The issue of whether or not Y can charge X for his/her costs in paying for the retouch and then destroying the results, will likely be resolved in favor of X. The reason is that Y had a valuable asset (at least valuable to X), and Y unlaterally chose to destroy that asset. Consequently Y paid for the asset, and destroyed it. None of which will be charged to X. Had Y sued X instead of destroying the photos, then the court would have awarded X damages, because of the breach of contract in failing to pay. But, the destruction of the consideration/photos, prevents X from obtaining the benefit of the bargain of agency, and once that occurs, X will be discharged from the obligation to pay.

END ANALYSIS

Given all of the above, if your goal is to get paid for the retouch, then you need to have your artist send you another digital copy of the photos so that you "stand ready to perform" in the event that X actually pays you. The theory that you can charge X double for the service after you destroyed the first set of photos will not survive careful inspection by a competent jurist/judge.

I have a judicial temperament and my analyses rarely fail to play out similarly in the real world -- because I don't advocate one side's position over the other -- I just "calls em' as I sees em'!" So, while I realize my findings and conclusions here may not completely satisfy your need for justice, I would be willing to bet that if this matter ends up in a courtroom (which I somewhat doubt that it will), that the result will be pretty much as I describe.

Please don't shoot the messenger. Better to know that a dark alley is a dead end, before you turn into it and slam into the side of a building.

Hope this helps.
Customer: replied 1 year ago.

WOW!! Your answer was pretty heavy stuff, but incredibly judicious and professional. I am in awe of both your legal acumen AND Just Ask. You guys are a blessing in my life and my business, I mean it :-)


Robert K.


NYC

Customer: replied 1 year ago.

One question, socrateaser. Does the fact that I gave this customer a multitude of chances to make good on his bill before deleting his images


have any relevance in a court of law? Before I destroyed his photos, I gave him a 48-hour ultimatum to either pay or face the consequences...

Expert:  socrateaser replied 1 year ago.
Forty Eight hours is not a very long time in a legal sense. It's not like you had a hard disc that was desperate for an extra 50 megabytes of space. These days the cost of storage media is fairly trivial. Whereas, the duty of loyalty of an agent to a principal is at least 1,000 years old. You won't win this without having those photos ready to deliver should the customer be prepared to pay.

This is not the case of a dry cleaner who has held someone's suits for 30 days, and only has limited space for clothing -- same for an auto repair shop with a vehicle sitting on the lot for similar time. If megabytes of storage were to cost even a penny a byte, everything would be on your side. But, the storage expense here is trivial (at least I think it is -- if we're talking about terrabyte sized digital files and your storage cost is actually substantial (e.g., more than $100 per photo), then that might change the analysis).

Hope this helps.
Customer: replied 1 year ago.

Storage space, of course, is not the issue. My retoucher breathing down my neck for timely payment definitely is! I've been trying to get payment from this guy for well over a month, and my working relationship with my retouching artist means more to me that anything else, so I was forced to pay her out of my own pocket. "Being nice" to this character wasn't working, so I had to resort to giving him dated, final demand to be paid. That didn't work either. Now he wants his photos, and I told him to go fish... I paid you bill and now we're done.

Expert:  socrateaser replied 1 year ago.

I understand your annoyance. If he wants the retouched photos and he sues to try to recover, this is what will happen in small claims:

J: [to you, defendant- D] Do you have the photos?
D: No, I destroyed them?
J: Why?
D: Because the customer didn't pay for them.
J: [to customer, plaintiff-P] Why didn't you pay for the photos?
P: Because D never showed them to me.
J: D, did you show the photos to P?
D: I sent him some low res thumbnails. If I sent him the hi res finished copies, I would have no way of enforcing payment.
J: Okay, P claims that he contracted for photos, and D admits that he had them but destroyed them because no one paid for them. If I rule right now, I'm going to hold you both liable in "pari delicto," which means that you both did a wrongful thing, so neither one of you gets anything. However, if D agrees to get another copy of the digital photos, and P agrees to pay for them, then I will continue this case until next month, and if one of you fails to follow your consent agreement, then I will find in favor of the other and award damages in the amount of the value of cost of the retouched photos.

So, do you both agree, or is it impossible to produce the photos?

END SCENE

That's what's gonna happen if you go to court. So, if you can get another copy of the files, then you can get your money back. Otherwise, not. Seems to me that having the files sitting around waiting is good insurance and it's worth money if you're actually sued. But, that's your choice.

Hope this helps.

Customer: replied 1 year ago.

Oh, man. You guys are the greatest!!! You are amazing... both in service and legal understanding. I've already told three of my colleagues about your service. What a godsend.


Robert K.


NYC

Expert:  socrateaser replied 1 year ago.
I'm flattered. However, to be clear, there is no, "you guys" here. The website treats each of us as an independent contractor. So, when someone asks a question here, it's pot luck who answers, and I won't be responsible for the quality of anyone's answers other than my own. So, if you want me, then you'll have to put my userid into the question body text itself, and tell everyone that you will only correspond with socrateaser. Otherwise, you may get someone whose answers are not as erudite as you expect (or not -- but it's still pot luck).

Hope this helps.
socrateaser, Attorney
Category: Business Law
Satisfied Customers: 34141
Experience: Retired (mostly)
socrateaser and 5 other Business Law Specialists are ready to help you
Customer: replied 1 year ago.

Always great service...

Expert:  socrateaser replied 1 year ago.
Are you sure we're not at Starbucks?

Later....

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