Client withholding payment - what are my rights regarding the pictures?

golfman

Hi guys,

I've been operating as a property photographer for the last year and I have got a client (estate agent) that is holding back payment.

The way it worked was, I took the pictures of the houses, edited them and then uploaded them onto a shared drive and they then used them for Daft and Myhome and on the brochures. I then put in an invoice every month and got paid.

Payment started getting slower and slower to the point where I could no longer continue working with that agent. I, very politely, gave them notice and withdrew my service.

I am struggling to get my final invoice paid and I just wanted to know my rights. The agent is being deliberately slow and difficult, just because they can. Unfortunately, and this is where I accept responsibility, there is no contract between myself and the agent. I never worried about the usage rights of the pictures as I knew they would only be used on the property sites.

All I want is to be paid promptly. As the images have not been paid for, who now owns the rights to them? Am I in a position where I could contact Daft.ie and say that an agent is using images that they do not own the rights to on nearly 50 property listings and make them pull down the listings? ( I don't want to go down this route but I feel this could be a persuader).

Any advice greatly appreciated. I have chased smaller debts before with debt collection agencies with success but the person I am having problems with is a different animal altogether and will drag this out as long as possible if they can.

sunny2004

I might be asking a question that others are wondering, but how much money is involved here ?

sheesh

you would own the copyright to the images if you took them. did you take them in Raw? that would help.

Find out the sites attitude to taking them down (as in will they take them down without you having going to the expense of getting a solicitor involved).

ditpaintball

Are they still in business, do they have the money to pay you even?

CabanSail

You retain the copyright. No doubts there.

I would imagine that the sites involved would not want to be involved in copyright breaches and so would probably withdraw the adverts if you satisfy them they are your images. Contact them and ask.

When you know your facts, then it will be best to talk to the Estate Agent and negotiate with them. You may have heard in the media that Real Estate is a tough gig in Ireland lately. The only way they will have any money to pay you is if they sell some properties. If you do withdraw your images then you will be reducing their chances of making a sale and lessening your chance of seeing any payment. Not saying you shouldn't withdraw them but consider the bigger picture.

challengemaster

ditpaintball wrote: »

Are they still in business, do they have the money to pay you even?

Should have thought of that before hand

charybdis

There is no question over who owns the copyright, the issue is over the rights of the agency to use the images.

What have you got in writing?

Is there a contract?

What are the details of your verbal agreement?

These are rhetorical questions for here, not so for your lawyer.

TheDietShop.ie

I think estate agents made enough money over the last 10-15 years to pay of the IMF.

Your are right in your opinion that the best chance of getting paid is if the properties sell but this is two pronged, the estate agent needs quality images to market these properties to secure a sale so should be doing everything to keep his photographer sweet.

Pay for the service you received mr estate agent, it's not a charity were running.

Hope you get your money and be prepaired to play hardball.

mrboswell

Email estate agent with something to the effect of "if no payment received by next week I will be in contact with Daft.ie with regard to the removal of my images"

If no reply or payment - then contact daft.ie and get the pics removed

Borderfox

Send bricktop around Only messing, be very insistent and call around to them until they pay you.

golfman

Thanks for the replies guys, I'll try and address you all individually:

Sunny: Its €3.5k + VAT that is owed

Sheesh: I do not have the images in RAW but I have the pre-edited pictures, i.e the 3 original jpg images that I "exposure fusioned" and "lightroomed" into 1 to make an otherwise dull house look bright and inviting!

Ditpaintball: They are still in business and I believe they have the capacity to pay me, they are just taking the hardline of, "you're just a small supplier, and as you've withdrawn your service, we'll be as difficult as we can be".

Cabansail: I was hoping the mere thought of copyright infringement would be enough for Daft and Myhome to take the listings down. I understand that Estate Agency is a tough gig lol, but that is why they needed my service! I was making their job that little easier! The last thing I want to do is take the listings down, I want to be paid! I just want the ability to have a valid threat.....

Challengemaster: The agency in question is probably one of the top performing agencies in the country at the moment.

Charybis: There is nothing in writing bar a few emails confirming price etc. At the time, I didn't feel there was any need for a usage agreement as the pictures were of houses for sale, with 98% of them being just your average run of the mill houses.

TheDietshop.ie : I agree! And thanks for the support. IMO This is a simple arguement of they have received a service and a product and have not paid for it.

MrBoswell: I'm trying to arrange a meeting with the owner early next week. Failing that, I will keep ambushing the office until they sit down with me. I will give them every opportunity to pay me, and if they don't I will use that as my secret weapon!

Borderfox: Ha ha........ I might need Bullet Tooth Tony as well!

ttcomet

Contact a solicitor nobody on here (including me) is going to stand over our advice in court, if we get it wrong we just shrug our shoulders and say "hard luck", it will be you that is in trouble.

I would strongly suggest NOT to contact Daft.ie and tell them to remove the pictures. You have a contract with them (estate agent), even though there is nothing in writing, there is still an effective contract between you. They have breached the terms of the contract they have not infringed your copyright.

I would be concerned that if you had the pictures removed then they could come back at you for damages due to loss of sales.

With a bit of luck maybe a letter from a solicitor will be enough to jog their memory to pay you.

PCPhoto

be prepared for them to argue that they employed you and as a result own copyright (there is provision for that in contract law... if they employed you (as staff) as opposed to hiring you as a freelancer)

employment and copyright are tough inter-twined areas - however if they do not have any employer/employee status over you then you own copyright 100% over the image and are within your rights to have them removed pending payment.

I would ask daft/myhome etc to remove the images asap - pending successful resolution of the outcome - if/when the client phones you asking why...you simply say you haven't paid your bill and the images are my property.

EDIT: as above - Boards are not responsible for any advice given (no legal advice is permitted)

golfman

Thanks again guys. I'm not looking for this to go to court, I just wanted to get a few views from other people in the business that may have encountered a similar issue. I'm a big boy and won't come crying back here if any advice given is not 100%. And I appreciate all the help.

ttcomet:

With a bit of luck maybe a letter from a solicitor will be enough to jog their memory to pay you.

I'm hoping the mere threat will be enough, and if not a letter should seal the deal. As mentioned, I don't want to go down the route of getting the pictures removed, I just want a "trump card" which is actually valid!

PCphoto: There can be no argument that they employed me. All invoices are from my company and I also do work for their competitors.

I'm pretty satisfied, I think I have enough ammunition to persuade them it is in their interests to pay me. Otherwise I will be contacting Daft and Myhome and seeking removal of all listings with unpaid pictures on.

I'll come back and let you know how I get on!

sineadw

In all honesty, no-one here is in a position to give you any advice. ttcomet could well be right that you might make *yourself* liable by having the images removed. I'd be making an appointment with a solicitor.

Borderfox

I had 1k outstanding for about 8 months and in the end it was bombarding the company with phone calls/emails/calling in person that got me a cheque, I cant help but feel that removing the pictures from daft will be a negative step that might make it harder to get the money eg they might dig their heels in (I'm a realist)

sunny2004

Firstly thanks for getting back with an answer to my question regarding how much..
I am with the advice that you now need legal advice..

sheesh

as everyone else said be careful

when I was writing a reply to the original post I was going to put in alot more advice but then decided to cut it down significantly to keep it clear.

Yes you probably own the copyright
but what is it going to cost you to establish this in law?

and after that

what is the probability of you getting paid?


good luck.

woody_2000

I don't know exactly how you conducted your arrangement (legally) with your client, but some passing thoughts:

Maybe a mutual/legal/formal agreement/arrangement in writing (legally binding, of course) regarding how you would conduct future business with a client... This agreement maybe to include payment terms, late payments, ownership of images, actions regarding payment, etc...

Formal invoicing pertaining to particular work/images, indicating in the terms of the sale/invoice when/if ownership passes on to client (e.g. you retain full ownership of image until paid for in full)...

Maybe have/develop a system on how you would follow through on payments... e.g. invoice, monthly statement / payment request, late payment notice/advice, non-payment notice/advice, etc...

Maybe formulate a standard legal/payment system/framework/arrangement through a solicitor/lawyer (whatever they're called nowadays), and maybe use that solicitor/lawyer to follow through at a later stage when you're having no success getting paid... Maybe a final non-payment notice/advice would indicate that further non-payment (or absence of a suitable arrangement) would mean that the matter would be handed over to your solicitor for consideration (with the possibility of further cost involved)...

However, as already indicated, you may need to speak with a solicitor regarding the situation - maybe before doing anything else... You may not know where you legally stand (and maybe your client does), so doing anything beyond what you have already done may be compromising your position legally (I don't know)...

Sometimes people/clients like these are some of our greatest teachers in life/business - and maybe it's best to recognise this, and learn from it...

Understanding contract law, as it pertains to your business, may be central to how you conduct any future business...

You could also maybe enquire in the Legal Discussion forum regarding your issue...

Best of luck!

101001

Sending bricktop around is actually not the most ridiculous idea.... if your solicitors letter fails, hire a debt collector. My brother was in a similar position recently, different business though.

The debt collector, which is a legitimate business, was a person who people in this country would know for more nefarious reasons. I don't know how the problem was resolved but his money was paid and it was cheaper than hiring a solicitor and taking the matter to the civil courts

sunny2004

I had to look up nefarious

magicbastarder

sell the debt to a debt collection agency!

jaybeeveedub

PCPhoto wrote: »

be prepared for them to argue that they employed you and as a result own copyright (there is provision for that in contract law... if they employed you (as staff) as opposed to hiring you as a freelancer)



EDIT: as above - Boards are not responsible for any advice given (no legal advice is permitted)

they must supply the equipment used to take the images as well as employ you for them to acquire copyright... the looseness in employee/contractor definition in contract is more designed to protect third parties not privy to the contract through vicarious liability...