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MissAnthrope's avatar

Legal Info: What is my recourse?

Asked by MissAnthrope (21462points) February 19th, 2009

I am a serious photographer and have some of my works on Flickr, under a limited Creative Commons license. The terms of my license state that my photos are free for use for all non-commercial purposes, as long as attribution is given.

I’ve been solicited a few times to have some of my photos published; this last time, a contractor/freelancer contacted me and said Microsoft wanted to use a photo for their student portal and were willing to pay $150. He was very persistent and eager to have me sign the photographer and model releases, as well as have my subject sign a model release.

I did this in December and faxed it to the contractor, but since then I’ve heard nothing. I emailed him a week ago to check on the status of this, as I have heard nothing and have not received my payment, but he did not respond.

I don’t want to assume the worst, but the idea of having my photo “stolen” like this is really aggravating. What compounds the issue is that the contractor lives in California and I’m in WV.

I’m wondering how I can proceed, if indeed they backed out on their end of the deal. Any advice would be appreciated. Thanks!

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8 Answers

wundayatta's avatar

For $150? Not worth it. Next time get payment put in escrow or something, to be released upon your signature.

jrpowell's avatar

Is it stolen if they didn’t use it? If they did use it you might have something. But it hardly seems worth it if it was only $150.

MissAnthrope's avatar

The sad thing is I’m so broke right now that $150 seems like a total boon. It just aggravates me so much. I think the principle of it is what’s really stuck in my craw.

And no, it wouldn’t be stealing if they didn’t use it, under the terms of my CC license. But at least have the courtesy to reply and tell me wtf is going on, you know?

Bagardbilla's avatar

Give him one last chance by contacting him/his firm and tell them your next move Then go above their heads to Microsoft. Tell them how they are being (mis)represented by this guy/his firm. If no result (first check to see if the image was ever used) sue them in small claims court.

Jack79's avatar

that’s often how big companies steal money though. I’m not saying Microsoft did that in this particular case, but there seems to be a system, followed mostly by banks: you steal a bit of money from a lot of people. Even those who notice won’t go into the trouble of taking you to court, because it’s not worth it for them. And those that do will only be a small percentage, where you can simply cut a deal. So you’re left with 1,000,000x$150 minus the legal expenses ;)

dynamicduo's avatar

Us freelancers always get burned once. Well, the bad ones keep getting burned while the good ones learn. I learned from my one time when a web design client who I had spent time and effort collaborating with, randomly up and left when it came time to implement the site. I hadn’t taken a deposit or made a contract so there was nothing I could have done. I had invested a decent amount of time into it as well and did not appreciate the lack of even a “sorry I don’t want to keep doing this” email. So I chose to get “paid” for the “job” by never ever letting such a situation happen to me again. Now I charge consultation fees beyond the initial question and answer period, and require a non-refundable deposit before any design work begins.

Your course of action may depend on the photo release you signed. Escrow would have been the correct way to deal with such a situation, however one would never expect an employee of a highly regarded company to do something silly as bait and switch a photographer. Legal recourse may not be easy nor desirable (you’ll end up spending more than that $150 on a letter from a lawyer asking to be paid, let alone what happens after that). Social recourse may be more likely to get a resolution to the situation without the cost/time/effort of legal recourse. Posting something on Twitter about your situation may make Microsoft aware. As would writing your experience in a blog post or in a community where photographers with similar issues hang out. Even this Fluther post may increase awareness of your situation.

First though, I would email the person again. They may have been away on vacation or otherwise couldn’t access their email. In your email make it clear that you expect a response about this issue in a timely manner. If you still don’t get a response after another week, it’s time to start climbing the ladder. Here’s Microsoft’s main contact page. You may wish to try to email the more customer service information contact details. They should forward your qualm on to the appropriate direction. You may have more success calling them up than emailing them, their number is surprisingly 1–800-Microsoft. Of course you may have to deal with telephone drones who don’t know how to funnel your concern appropriately cause it’s likely not in their flowchart.

There is the possibility that they have simply not used your photo, and thus may not technically be breaking the contractual agreement by not providing you with compensation, but if your agreement was to license the photo to them in exchange for compensation, then the fact that they have not used the photo does not alleviate them of their need to pay you.

MissAnthrope's avatar

Wow, dynamicduo, I wish I had more lurve to give. That was really helpful. Thank you!

I did write him again a bit ago.. I also found what I think is the student portal and don’t see my photo, so I’ll have to reread the agreement I signed, to know how to proceed. Thanks to you all. :)

steve6's avatar

Microsoft? Call Jackie Chiles. He’s been wanting a piece of them for years. Their portal makes them mortal! (Did you make the coffee cup or the lid?)

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