Dispute with sole trader

unholyangel

Undervalued wrote: »

Are you absolutely sure about the bit I've highlighted? I'm an not aware of that ever happening but I'd be interested to read any relevant links.

Yes I'm sure. The judge could also order the photographer to complete the contract as agreed.

However it would have to be something OP did have a right to. For example the contract allowing for either the negatives or a copy of all the photographs taken to be given to OP on cd/flash drive for example.

Undervalued

unholyangel wrote: »

Yes I'm sure. The judge could also order the photographer to complete the contract as agreed.

However it would have to be something OP did have a right to. For example the contract allowing for either the negatives or a copy of all the photographs taken to be given to OP on cd/flash drive for example.

Yes, I agree with you there however that was not how I read your earlier post.

Also, in the absence of an agreement to the contrary the copyright of the photos belong to the photographer and not the client.

unholyangel

Undervalued wrote: »

Yes, I agree with you there however that was not how I read your earlier post.

Also, in the absence of an agreement to the contrary the copyright of the photos belong to the photographer and not the client.

OP doesn't need to hold the copyright/ownership to be entitled to ask for them - they just need something which expressly states or implies that they should be given a copy of the originals or the negatives themselves.

For example if the contract allowed for them receiving all the photos on a cd - from which they were to pick the 30 they wanted in the album - then they'd have enough to ask for the photos themselves rather than costs involved in getting them re-done.

I believe its the norm that even when photographers retain copyright, the consumer still gets a copy of them and has a license to use them (at least for weddings).

Undervalued

unholyangel wrote: »

I believe its the norm that even when photographers retain copyright, the consumer still gets a copy of them and has a license to use them (at least for weddings).

To use them for the originally agreed purpose then yes.

The default position is that the photographer owns the copyright of any commissioned work. This changed with the 1988 Act. Prior to that the default position was that the copyright belonged to the client.

Obviously this can be varied by the contract under which the work is undertaken but, in the absence of such an agreement then the default applies.

It is also a long established principle that negatives or other intermediaries remain the property of the photographer, again in the absence of any agreement to the contrary.

Regardless, the OP is entitled to have what they have paid for and if that can't be supplied (perhaps the photos didn't "come out" or have been lost) then they are also entitled to some compensation.

As I said earlier I am aware of a wedding couple being awarded the same amount in compensation for the loss of all photos as they would have paid had they been supplied. Maybe there are other more recent rulings?

djmsemcgrath

Thanks for all the replies in here, very interesting to read.

There hasn't been much to update - as per some earlier advice, I sent him a letter stating my request clearly, with a timescale attached, and I sent it to the address on the invoice, the address shown in Google when I googled the name of the business (which was different - it looks like Google had the address for another studio), and I also sent it to the address that WHOIS had as the registration for his website.

All of them were recorded delivery so I can see which one he signs for.

If he doesn't sign for any, or someone else does, I'll just put the invoice address on the small claims application.

I need to wait now until after my timescales have expired before I raise the small claims application - I want to ensure I do everything by the book.

I've asked for a) a copy of the photos on CD as agreed in the contract and as mentioned in the itemised invoice, or b) a full refund, including some extra for compensation and the chasing I've had to do. I've not been greedy here at all.

Obviously, I can't imagine he'd reply to that, so I'll get together all the paperwork, print out all emails, contracts, invoices, etc and get everything ready for the small claims application, and see how that goes.

I'll update people in here on progress, as I like ending the story, but it might be a few weeks wait now.

bod1467

Unless you've needed to take/waste holidays to deal with this then any "compensation" claim for time may be difficult to justify. However costs for stationery, postage, printer ink etc. would be valid costs to claim.

djmsemcgrath

The compensation I've included is the cost of getting some photos restaged and hiring a new photographer, and this figure has been calculated by using the cheapest quote I received from 5 randomly selected local photographers.

bod1467

In which case you may wish to edit the below ...

damianjmcgrath wrote: »

or b) a full refund, including some extra for compensation and the chasing I've had to do.

That does not match at all with what you've subsequently said in post #58.

naedanger

damianjmcgrath wrote: »

The compensation I've included is the cost of getting some photos restaged and hiring a new photographer, and this figure has been calculated by using the cheapest quote I received from 5 randomly selected local photographers.

If you are seeking a full refund plus the costs of getting some photos then the original photographer may argue are seeking more that you have lost as you will have both photos and your original money. (However if you are only talking about a few photos I, personally think, you could rebut such an argument. Nevertheless it may be worth preparing a response.)

djmsemcgrath

What do you mean?
In my letter, I asked for a full refund, plus compensation, plus reimbursement of some chasing I have done, such as recorded delivery letters etc.