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montysimmons
montysimmons, Patent Prosecutor
Category: Intellectual Property Law
Satisfied Customers: 233
Experience:  Electrical Engineer, South Carolina Attorney, Member of US Patent Bar
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I am an amateur portrait and still-life photographer looking

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I am an amateur portrait and still-life photographer looking to become a full time professional within the next year so I often do side jobs. Tutoring is one of them. Last year I tutored a high school girl in chemistry and became close with her family, particularly her mom. This year the girl's mom invited me as a guest to three of her daughter's senior year events including: two cheerleading competitions and her prom night. I brought my camera with me and took photos at each event. Following each event, the girl's mom asked me for photos. I made her a web photo gallery for each event and in some instances I gave her digital copies. I didn't charge her for the images I took at the cheerleading events because sport/action photography is not something I usually do. After the prom night, however, I told her I would have to charge her for the photos. I was only willing to give her a free web photo gallery. I suspect that because I gave her copies in the past she assumed I would do it again with the prom pictures. Anyway, she was displeased when I informed her that I would require payment. She then stated that I told her I would offer her my photography services free of charge and that the photographs were a gift for her and her family. I never entered any agreement, verbal or written, with this woman regarding my photography services. This happened a month and a half ago. Three days ago I received a letter from an attorney stating that the mother is requesting that I forward her the photographs I took at each event because she claims I volunteered my professional services as a photographer. There are two other requests regarding posting her daughter's images on my website server and my use of her daughther's images in my portfolio. This woman and her family were my friends and she invited me to these events as a friendly guest. These particular events are ones in which family and friends typically bring a camera. The mom would say bring your camera when she invited me, but had she not, I would have brought it anyway due to the nature of the events. As a token of my appreciation and generosity, I made her a photo gallery and gave her some copies for the two cheer events. She did not ask for this, I did this on my own without entering any agreement or receiving any payment. I was just being nice. When her prom night came, I intended on making her family another web gallery which I did. She was disappointed that she wouldn't receive the prom night pictures without having to pay for them and now she is threatening to take legal action against me. She says I verbally agreed to offer these services free of charge, but I know I did not. There is no written contract/agreement stating her claims. Therefore, does she have any rights to my photographs and do I have the right to charge her for my photographs?
Submitted: 1 year ago.
Category: Intellectual Property Law
Expert:  montysimmons replied 1 year ago.

She has no legal rights to the photographs.

You are the "author" and you own all copyrights in the photographs.

Not even a close call.

Concerning the issue of offering a "gift" to someone. Such law is also well settled.

A promise to make a gift can be rescinded all the way up to the point the gift is actually given.

Example: Person X promises to give person Y a car. Person Y has his a friend drive him 200 miles to person X's house to claim the gift. When Y arrives, person X says: "I changed my mind. You can't have the car." Nothing person Y can do.

A promise to make a gift is not binding nor is a contract formed.

So even if you did promise to make a gift of such photographs you can change your mind at any time before you actually follow through with giving the photographs.


Customer: replied 1 year ago.

Thank you very much for your answer. I'm considering ignoring her threat, but preparing myself in case we must go to court. Though, I don't know if I should just reach out to her directly and attempt to diffuse the situation and prevent court. My question is if I respond to the woman's threat of leagal action against me by contacting her via email/mail, can she use my response against me in court?

Expert:  montysimmons replied 1 year ago.

My question is if I respond to the woman's threat of legal action against me by contacting her via email/mail, can she use my response against me in court?

 

While any person can sue another person for anything, not all suits are well founded in fact under current law or a good faith extension of current law. Such suits are frivolous.

 

Under the facts above, THERE CAN BE NO VALID LAW SUIT FILED AGAINST YOU. But a Frivolous one could be filed. I personally would not worry about it.

 

"Though, I don't know if I should just reach out to her directly and attempt to diffuse the situation"

 

The is a personal Opinion - not so much a legal answer

 

Exactly what I would do. My opinion, always be the nice guy, not for others, but for yourself. It is really great to look back and see all the good deeds you have done especially for people who acted badly and did not deserve them.

 

So under your facts, I would make it clear to this person you owe her nothing. And if she does not believe you, tell her to just ask a lawyer.

 

Then give her some photos if the work is already done and it is no or little extra costs to you.

 

When you look back years from now you will be glad you did. You reap what you sow in this world.

 

Not a legal position just a personal philosophy from someone who has to deal with people acting badly every day.

 

 

 

 

Customer: replied 1 year ago.

I'm really not interested in giving her anything more than what I already have. So, I want to know if it's better to address her and/or her lawyer's claims or to make no contact whatsoever and wait to see if she will proceed with legal action.

Expert:  montysimmons replied 1 year ago.

Well, wait and see if she proceeds with legal action. Under the facts above, I would not expect to hear from a lawyer or the issue to go very far.

Customer: replied 1 year ago.

Should I contact any agency, such as the Bureau of Better Business, or a legal agency in regards XXXXX XXXXX strong arm tactics/extortion from the law firm and the lady? I feel that they are trying to deprive me of my property through unlawful means of fear.

My final question is, if the lawyer was to take me to court, would I be able to receive reparations or counter sue for the expenses incurred as a result of the frivolous case?

I understand that this case may not go anywhere, but I just want to be as prepared as possible in the event that it does. Thank you kindly for your answers thus far.

Expert:  replied 1 year ago.
Should I contact any agency, such as the Bureau of Better Business, or a legal agency in regards XXXXX XXXXX strong arm tactics/extortion from the law firm and the lady? I feel that they are trying to deprive me of my property through unlawful means of fear.

In South Carolina, (the state I am licensed to practice state law): If the facts are as you indicate, and the case is truly frivolous, which under the facts of you case, such would be frivolous in South Carolina, and a lawyer/law firm is involved, file a complaint with the bar in that law firm's state. Almost all states have a website where you can find information on how to file a complaint against a lawyer.

Whatever you do, always make sure you tell NOTHING but the TRUTH that you can prove to be true so that you are protected against slander/libel.



My final question is, if the lawyer was to take me to court, would I be able to receive reparations or counter sue for the expenses incurred as a result of the frivolous case?

One can file a motion for Rule 11 sanctions. One of the remedies for Rule 11 sanctions is attorney fees. But Pro Se (i.e. no attorney, you do it yourself) Defendants cannot get attorney fees as there are no attorney fees and you can't charge for your time. Not fair, I know, but such is the system we have. Other remedies are possible and are state specific and are likely found in your state's Rules of Civil Procedure and associated case law.


I understand that this case may not go anywhere, but I just want to be as prepared as possible in the event that it does. Thank you kindly for your answers thus far.

You are welcome. If they file a complaint against you I would be interested in seeing the complaint just for my personal knowledge/education.

Come back if you need more answers.

montysimmons, Patent Prosecutor
Satisfied Customers: 233
Experience: Electrical Engineer, South Carolina Attorney, Member of US Patent Bar
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