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Hey all,
I've posted a few times on this issue in the past, and things have finally come to a bit of a head. It got a bit interesting and if you are interested in reading how it went down and maybe respond on how I handled it; that would be interesting.
It might be a bit of a read, but it is interesting and you might find it helpful to read something that you should/should not do when dealing with clients and such.
I'm fairly new in the professional photography game (5 years) and am learning the hard way about dealing with image prices and sales.

First the situation in brief begun as I was doing freelance photography work in Australia. I was aboard a sailing trip in the Whitsundays and took some great photographs. After taking the trip, as a thank you, I offered thumbnail photo's for personal use around the office or at home for the company and also offered the option for them to buy if they wanted to use them.
They loved the images, and asked for 8 images at $100 each.
I gave them a photo cd and invoiced them for $800.
This was over a year ago and after numerous re-billings, emails, and phone calls; I was never paid (I was always told that accounting is a bit behind and they would get right on it) until I was finally ignored.
A few months ago, I came across a brochure for the company and found two of my images in use! I was irate as I was never paid and my emails were now ignored. Of course this is in Australia and I am in California, so that makes things a bit difficult.
I finally got ahold of some people and got the contact information for the man in charge.
Sorry, it might be a long post. There are 6 exchanges (3 exchanges)...but it might be very interesting and informative for you to read.

Here is the email exchange....

Email #1 of 6 (my initial email to the new manager...this initial email is the longest of them, explaining the situation again and relating my opinion on the matter)

Hello ****,
I do not believe that I have spoken with you before about this issue, but I apologize if you are unaware of it.
Just under a year ago, I was aboard your vessel doing some freelance photography.

The (Initial Buyer), on behalf of (the company), was very interested in the use of my images for (company) advertising as well. I am sure that this issue was discussed with the appropriate peoples at (the company).
An agreement was made and an invoice was sent for the use of 8 images at the total cost of $800.
This invoice was originally sent on Sept 26 of 2004 and resent at least 4 or 5 times since then. She confirmed that it was received and sent to accounts; but payment was never made.
I made numerous calls to (the purchaser) over the following months and sent numerous emails regarding the delinquent payment.
I was assured each time that the issue was being taken care of, the images were needed and to be used, and the payments would be sent immediately.
In good faith of (the buyer) and (the company), I accepted this apology and in good nature, patiently waited for payment.
Eventually things began to become completely unprofessional as she stopped returning my correspondence altogether and when I contacted (the company) directly, I was only to be ignored.
Being led on, lied to, and ignored is not acceptable.
In good nature I offered my services and images for use for a small and agreed upon fee, as I did with many travel companies; and counted on the integrity of those in the business.
I understand if my photographs were no longer needed and I would not have pressed the issue any further if (the company)l was up front about it, but this was not the case.
To my utter amazement and extreme displeasure, I ran across a major (company) advertisement which contained my images, and I have reason to believe that more have been used.
This is completely unacceptable.
I have worked with a variety of companies and photo agencies around the world. Being based in other countries, a photographer must rely on the integrity of those granted with the privilege of image use; but there are always those out there who take advantage of the photographers being out of country, and illegally published work without payment or permission.
If this has happened once, this has happened numerous times with myself as well as photographers around the world.
If (the company) has published my images without payment or consent, then (the company) has done it to other photographers, and I am not the only victim. If it has happened once, then it will happen again.
Throughout 2004, I worked with numerous companies in the South Pacific travel field and have found all to be of the highest integrity when dealing with fellow industry workers. That is why I am so surprised to find this occurrence, though now I have concerns about others in the south pacific travel industry.
Though $800 may seem a minute amount to you now, for me it was necessary income and a budgeted amount that was counted upon by me to continue my photographic work.
This factor meant a great deal to me, and seriously affected my photography work abroad.
Now it is not so much the monetary factor which bothers me but a much greater knowledge of injustice and deception when regarding myself and my images.
I had hoped this issue could be resolved, but as I have been ignored in the past months; I have felt it necessary to look to other means of rectifying this improper and illegal behavior.
(The new manager), I thought I would contact you directly and look for a response, explanation, or solution.
I hope that I am wrong about (the company), but the facts remain that my invoices were never paid, my images were used without my consent, and I have been ignored for a good while now.
As I mentioned, as a photographer in a worldwide market, the highest care must be taken in maintaining control of images as there are so many who would seek to take advantage at the first chance.
I have also attached a copy of the original invoice.
I look forward to hearing back from you.
Regards,|

Email #2 of 6 (the new mangaers response)

Hi Micah,
This is indeed the first time I have been made aware of this issue, and in turn I have some (probably unwelcome) news for you.

On the ** of April this year (the company) went into receivership. The (company) name, logo and certain other assets where purchased in the winding up process by a new company, (current company), on the ** of May 2005. (new company) has no common owners, directors or senior management with (the old company).

As your use of "(old company)" clearly refers to (old company) I direct you to that company's Administrator, whose company holds responsibilty for all outstanding debts of (old company), including such claims as your own

(old company) collaspsed owing millions of dollars to a wide range of creditors. Among them where all staff, including (original buyer) who is owed well over $10,000.00 in super and other entitlements. Not one of these creditors will recieve payment and, although it will not make you feel any better, my advice would be to put whatever occured behind you and move on with a full and happy life.

Upon starting (new company) I instructed our graphic designer to go through all promotional material, hard and electronic, to ensure we have rights to all artwork.

I am a firm believe in copyright and just reward for work done and would be very upset should it turn out that a letter such as yours should be justly aimed at my business or employees. Once again I sympathise with your feeling of injustice and wish you all the best in the future.

Kind Regards

Email #3 of 6 (my response....sent along with the sample images they purcahsed and are using)
Hello
and thanks for the prompt response and the explanation.
This issue has caused me much grief over the past year; and though I do feel very sorry to find the sad state of things financially with (the old company and buyer), I wish she would have been promptly up front about the issue. I don't know her reasons, but it would have been at least professional courtesy.
But again, thanks for updating me on the situation. Indeed I can now put this issue behind me and learn from it.
I have attached a few of the images which I sent over with (the old buyer); just so that you can double check that they are removed or are not remaining in your photo library or current advertisements, and will be unused.
If there is any interest, let me know.
Anyway, best of luck with the new company......The trip was easily one of the best things I did in the South Pacific last year...and I did almost everything.

Email #4 of 6 ( his response after seeing which images they were and that they were using them)
I e-mailed (old buyer) immediately your first e-mail came in, she was in Africa at the time and just got back over the last few days (see her reply below). Whilst still not privy to all your communications, I have found her to be forthright and would not be too surprised that she had been misled into believing that you had been paid.

Now that I have seen your images I know that at least a couple had indeed been used, our graphic design company had been told that (old company) had paid for the images as they would also not use images without rights. Please understand that I have been approached by a large number of people regarding business dealing of the old company, not all with the merit inherant with your situation.

To rectify this in good faith I would like to purchase the rights for the "boy in the hatch" and the shot now cheekily refered to as "the dead boy", floating at Whitehaven, for (new company) (I understand that these were the two images used?). If you are happy to do this, I would like to use them again in the future. as your price is so reasonable I would also like to take the rights for the two "beach" shots.

The rest of the shots feature "boat logo" and due to circimstances beyond our control she is leaving the fleet (the owner had an experience not unlike your own and sold the boat) and obviously images will not be required. I am unable to be quite as free as the old company with the marketing budget, due partly to the fact that we are a smaller operation now, and partly as I intend to actual pay people when promised.
Please let me know how you feel about this and if agreeable your EFT bank details.

Emaill #5 of 6 ( my response to him wanting to use my images)

Thank you for your honesty and checking up on the images.
I find it a bit hard to believe that (the old buyer) has no knowledge of my unpaid bill, as I sent her consistant emails and invoices for a number of months and made a number of calls. Anyways, like you mentioned, I have put it behind me.

As for the images, I appreciate your interest, however I cannot agree to what you ask for a few reasons.
The first is the simple fact that I am still owed $800 for my images; which have been used without my permission. The neglect in payment caused some serious issues in my photography work overseas last year. I counted on this bill to be paid, and as it was I had to change a number of travel plans and finally was forced to end my photographic ventures prematurely. Over the past year I have had to deal with this matter time and time again; as well as seek legal advice on the issue; and it was recommended that I seek interest and late payment penalties.
Of course you can see that this issue has been a persistent and deeply buried thorn in my side over the past year.
(old company) has been using the images in mass distributions for a good period of time now, while my invoice remained neglected and unpaid. I legitimately and legally feel that I should be compensated at a far greater amount than even my original amount of $800.
I do understand though, the situation with (old company)l, the debts of the company, and that it is an entirely new company. Again if the previous (old company)l had taken care of this a long time ago, in a professional up-front manner, this would not have been an issue at all.

I do appreciate your honest dealings with me though. I know that this issue had nothing to do with you and you had no prior knowledge regarding this.

So I cannot sell the images alone for $100 each.....

However, in light of the new situations, I am willing to honor my original contract and invoice of a minimum of $800 for all of the images. I know that you can no longer use the "boat name" images, but I am simply looking for an outstanding debt that I have been owed for over a year, to be paid. On a side note, with a basically trained graphic designer, the boat name logos can easily be removed or changed.
I feel that $800, even for just the 4 images is still a very reasonable price and I am willing to accept this if (new company) is in agreement. I would find it very favorable in addition, if a small amount for "retribution" were added to this amount....but that is up to you.
Again, thanks for your interest. I am flattered. It is unfortunate that the situation had to come to this, but those are the terms I would be satisfied with.
If (new company) is unable to go along with this, I would have to ask that the images be taken out of use immediatly.

Email #6 (his most recent response)

Please understand that I sympathise with your hardships, but hold absolutely no responsibility for them. At the time of your struggles my company did not even exist. We purchased from (old company) a wide range of assets including many images. This company has already purchased the rights to your images from (old company), the fact that you have yet to be paid is an issue for you and them.

Although there is no reason for us not to use your images, out of respect for artists rights in general we will not. I will now arrange for all we have to be deleted or destroyed, any images that may be in the marketplace will be removed through rotation.

I'm sorry that we could not come to a more satisfactory arrangement, however I have done far more than required, more than any reasonable person would have done in the same circumstances.


So that is it....I was again quite upset when I read the last email, as it sounds he feels he owns right to my images, buying something that never should have been sold. In my opinion it would be like the old company asking to buy the rights to the mona lisa (no comparison needed), yet not paying; but then selling the painting to another company for millions. That does not give the purchaser the rights for the image.
In the end I must say that I passed up on a $400 sale ($300 US); but I am okay with this. I could desparatly use the money; but the principal that after being treated so poorly by the old company I feel I deserve more for dealing with this mess; not setlling for half.
I was also wondering if I can demand them to take the publications and advertisements out of rotation immediatly. It sounds as if he is going to take his time removing the publications. I think it would be a different story if he knew that he had to remove all images immediatly.
He seems like a reasonable manager and I have no ill will towards him. It is the siuation, that I will not settle for less after such a bad go round.
I've no responded. I'll probabaly ponder it a few days before response. I want to confront him on the issue again, but I think that will bring only more heated response with no benefit involved to be seen for me. I think it is a moot point.
I appreciate your reading of this and if you have any thoughts, I'd love to hear them.
I really am just beginning to have to deal with these situations.
Incidentally I have another selling situation unfolding at the moment as I am trying to sell imaes to a restaurant. They want to use the images in their email publication and website. He picked out 16 images from New Zealand and I told him that the rate was about $100 per image (I'd give a deal for all 16 though)..but he was quick to respond saying that he would get back to me with an offer and I can take it or leave it. I'm waiting on that offer, but I'm expecting something like $400 from him; which I do not know if I would take it. There's really no other restaurants in the area who specialize in south pacific foods, so I can't really shop them around...but do feel the images are worth what I asked.
Micah
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