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Dwayne B.
Dwayne B., Attorney
Category: Legal
Satisfied Customers: 26762
Experience:  Began practicing law in 1992
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Hello There, I am a photographer, and I am having trouble

Resolved Question:

Hello There,

I am a photographer, and I am having trouble with a model. I photographed the model 5 days ago, and she immediately started sending texts regarding the return time of the images. Her and I had spoken only of planning to shoot together, and a rough number of how many images would be returned to her. No contract delegating turn-around time was signed during the shoot, nor any sort of release paperwork for the usage of her images. There was no monetary exchange either.

I can admit that I was not especially pleasant after what I felt to be harassing, and continuous calls and texts, even after I had informed her that I was driving in a car, and could not talk to her or text her back.

I had informed her that paid work that I had backed up took priority, and that I could not turn them around in the time frame she wanted. I told her that I could fast-track her images before I left for a working trip in 2 weeks if she was willing to pay my standard rate for the edits. I specified that she would receive images in around 6 weeks ( me needing time for both backed up paid work, and working travel trips ) which is standard for me and many of my peers.

After a long back and forth, I finally sent her proof images, to which I received a frightening and harassing e-mail. The email was from her mother, who was quick to inform me that she was a judge in good standing, and their whole family were lawyers. She was also quick to inform me that she has plenty of expendable money laying around, and was willing to spend it to try and hurt me. I was told that I would be sued for everything but the kitchen sink, including defamation of character, in regards XXXXX XXXXX made on facebook ( 2 ) and instagram (1 ) ( these were never specific, not naming names, and all but irrelevant to her - she was referred to as an amateur on a photo that was posted of her on instagram, but it was also posted without her name, while in reality, she does not model professionally, and is therefor an "amateur", the instagram post has since been deleted ). In her explanation, the case would be based around the idea that her daughter's/client's time is equal to payment, therefor needs to be considered a paid shoot, as in, she paid us ( even though this is my profession, and my time is valuable as well ) and that the correspondence we had in picking a time and a date, and me specifying the amount of images I typically return from a shoot is a binding contract in which I have to return images based on her demands.

She informed me that the way I would avoid having litigation brought up against me would be to return images to her, in a quantity and time frame of her specification, to be screened by her for quality.

What rights does she actually have? Her whole argument seems like a straw man to me, but I've never dealt with anyone like this before.
Submitted: 9 months ago.
Category: Legal
Expert:  Dwayne B. replied 9 months ago.

Dwayne B. :

Hello and thank you for contacting us. This is Dwayne B. and I’m an expert here and looking forward to assisting you today. If at any point any of my answers aren’t clear please don’t hesitate to ask for clarification.

Dwayne B. :

First off, if her mother is a judge and sent a letter like that then it is extremely likely that she violated the the canons of judicial ethics since she was essentially using her position as a judge in an attempt to influence someone's behavior and obtain a favorable result for her daughter.

Dwayne B. :

As to the rest, I need you to be a little more specific in your question(s) if you could. When we answer general ones like "what are her rights" we have to give general answers and, invariably, the customer responds with "I already knew that". This type of forum works better if you ask specific questions so we know exactly what you are looking for.

Customer:

Hi Dwayne, Thanks in advance for you help.

I guess my main questions are could she actually sue me for defamation of character based on what I said, and could she actually bring up litigation against me for the images. I would be happy to delete the images and never speak to them again. Without a release, I have no more rights to them than she does for distribution, I solely retain ownership of my creative property. I was very confused about her saying that her daughter paid us with her time, therefor we must treat it like a paid shoot in priority with such.

There were two other things that were really unnerving about her email. She had mentioned that she acknowledged that my boyfriend is a medical marijuana patient in the state of California, and essentially said to me "I hope he has a prescription, because it seems shaky, and I plan to use that against you"

Customer:

and she called me calling her daughter/client amateur as slander, which I understand to be serious.

Dwayne B. :

Could she sue you? Yes, anyone can sue anyone for anything. However, she isn't likely to be successful in the lawsuit because the facts you have given don't indicate anything defamatory or slanderous.

Dwayne B. :

She has an argument to sue for copies of the images that you promised her but the issue here is that you haven't said you wouldn't provide them to her, just that she has to wait.

Dwayne B. :

You actually have more rights to the pictures than she does since you were the photographer and automatically have a copyright on the images.

Dwayne B. :

Calling someone an amateur isn't slanderous since, as you pointed out, she is not a professional model.

Dwayne B. :

In addition, the word amateur isn't slanderous on its face.

Dwayne B. :

What I'd suggest you do is go and see a local lawyer and have them write a letter for you.

Dwayne B. :

I have serious doubts as to whether 1) the mother is a judge or if she is 2) she wrote the letter/email to you.

Dwayne B. :

The judge would know it is a violation of the rules of ethics.

Dwayne B. :

This is also the kind of letter you see written by someone that is not a lawyer/judge but pretending to be.

Customer:

It was so aggressive, I'd not have put it past sheer rage. It was really unnerving. I guess the last thing was does the idea that she paid us, as if she had paid us monetarily, stand as payment? I figured since both of our time was used, that isn't true.

Customer:

as in, she paid us with her time, being a form of actual payment someone could try and recover?

Dwayne B. :

No, there is a theory of law called "quantum meruit" which means that if someone performs a service they are entitled to be paid for that, but not if there was not some kind of agreement as to payment.

Customer:

because we used our time, and our equipment, and that just seemed really absurd, and if not, really unfair. in reality, the images, which we had always intended to send would take more time on our hands to process and edit.

Dwayne B. :

My suspicion is that if you have a lawyer respond and point out the ethical violations and other issues that the whole problem goes away.

Customer:

Thank you so much for your help Dwayne, you really made me and my boyfriend feel a lot better about this. We will visit a lawyer to discuss a letter being sent on our behalf.

Customer:

You were definitely worth the money :)

Customer:

I'll let you get back to helping people who need you!

Dwayne B. :

You're very welcome! Keep me informed if you get a chance.

Dwayne B. :

Best wishes to you on this and please don't forget to leave a Positive Rating (of course I’d suggest Excellent!) so I get credit for my work.

Customer:

Absolutely!

Dwayne B., Attorney
Category: Legal
Satisfied Customers: 26762
Experience: Began practicing law in 1992
Dwayne B. and 3 other Legal Specialists are ready to help you
Expert:  Dwayne B. replied 9 months ago.
Thank you very much for the Positive Rating. Please come back and visit us if you have any new questions and feel free to ask for me by placing “FOR DWAYNE B” in the subject line or as the first words of your question and I will pick up as soon as I see it.

Also, I’d ask you to consider issuing a high rating (9-10) when you receive your customer satisfaction survey as that ensures I can continue to assist people in this category.

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