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Here Comes the ….Contract, Social Media and Ownership Case!

Posted by on Aug 4, 2017 in Artists, claims, Contracts, copyights, Copyrights, Life | 0 comments

This week the Internet went abuzz – A Bride and Groom have to pay their Wedding Photographer $1.08 million dollars?!?  WHAT?  How can that be?  The condensed version – it appears as if Andrea Polito and Andrea Polito Photography, Inc. was hired by Neely and Andrew Moldovan to photograph their wedding.  A contract was signed between the parties.  When the Moldovan’s chose their proofs to create their wedding album an additional charge was due Ms. Polito per the signed contract.  The Moldovans went to social media making claims regarding Ms. Polito and Andrea Polito Photography.  The Social Media posts were eventually picked up by a local Dallas television station which also aired the Moldovan’s view of their reported plight.  The posts and news report caused Ms. Polito to lose her established business.  A Dallas Court ruled July 28, 2017 that the Moldovans made defamatory, disparaging and malicious statements against Ms. Polito and her business thus awarding the Plaintiff, Andrea Polito and Andrea Polito Photography, Inc. $1.08 million dollars in damages.  Of course, there are a lot of facts, twists and turns to this case and I encourage you to check it out in full.

This case is a convergence of contract, copyright and social media issues that any creative professional should take notice of!

The first issue is CONTRACTS!  Professional Services of any type should commence with a written agreement.  While a proper agreement which conforms to all applicable laws is the preferred method, this Case reminds us that having costs, expectations and payments in writing can solve a lot of problems or save a performing party if proof of the parties’ agreement is required.  Contracts can be complicated or simple, Contracts can be drafted by a legal professional or between the parties.  The first day I walked into Law School and Contracts 101 Prof. Peter Jason taught us that all contracts are merely a bargained for exchange for which consideration is exchanged.  He then spent two semesters filling in the blanks.  Many professional organizations offer draft or sample contracts for members to use.  This case serves as a reminder – GET YOUR AGREEMENT IN WRITING EVERY TIME!

The second issue is COPYRIGHTS!  It is usually very shocking to a bride or groom when they realize that it is the Wedding Photographer and not the couple that own the copyrights to their wedding photographs unless a written agreement to the contrary is in place.    A Photographer does not have to release photographs until the terms of the contract or agreement between the parties have been met.  Furthermore, this case serves as an important reminder to creative professionals that create copyright protected projects for others that copyright ownership does not have to be given to the client unless a) the creative professional signs a knowing and intelligent written waiver of his or her rights to the project (which is usually part of the contract) and b) the terms of the contract have been met.  In the Polito v. Moldovan Case, Ms. Polito was not “holding photographs hostage” when she demanded that payment in full before she turned over the photographs to the Moldovans.

The final issue is Social Media/Online Review Statements.  Everyone who thinks about flaming a business online through social media and online reviews should read this case.  I speak around the country on Social Media, Social Media and Marketing and Social Media and Employee issues.  When I speak I make the same statement – DO NOT POST SOMETHING ON SOCIAL MEDIA THAT YOU WOULD NOT WANT POSTED ON A BANNER THAT IS HUNG ACROSS MAIN STREET!  Posts can be found even if retracted or deleted.  There is no such thing as a private post.  The truth is a defense to a claim of slander (spoken word) or libel (written).  However, most people in the heat of anger forget facts or let their anger speak for them.  Honest negative reviews are not what lead the Moldovans to Court.  Honest Negative Reviews were not what put Ms. Polito out of business.  Something went wrong, very wrong that could not be taken back.  This case finally serves to remind all of us, that what we post on Social Media and Review Websites has consequences.  As a creative professional, this case demonstrates that if you are a target of a customer and you believe that the customer is out of line…. you may have recourse.  As a consumer, this case reminds you that it is important to leave posts and reviews that are based on facts or opinions based on facts.

This may be a case about a Wedding Photographer and an Angry Bride and Groom, but this case reminds creative professionals and all of us, that written agreements can help insure that you will be compensated for the work that you perform while helping to defend you for inaccurate social media posts and reviews.