Customers will contact me

[helpmeout]

I'm not sure why you need the advice as it really doesn't matter how it's worded if the debt was included in the discharge.

Also, I think that the people scorned by whatever (callous) acts you may have performed have probably long gotten over it. Just talking about this stuff, I feel like I'm back in the 80's. WHAM!

Just tell them: Thank you for your inquiry but your order/purchase was unfortunately included in the recent Bankruptcy Discharge (insert discharge number). I appreciate your interest in my product.

BOOM. DONE.

I think that sounds good but then again I've had a couple glasses of wine. GOOD LUCK TO YOU!!!

ep

I would agree if it wasn't their wedding pictures. That's not something that they are likely to forget. It's not like they can have the pictures retaken. The day has come and gone.

And since the OP is going to continue to be a photographer, he's going to have some major issues with word of mouth if he doesn't at least hand over the negatives. I know that if was considering hiring a photographer and I heard that the photographer did what the OP has done, I would not even consider that photographer.

[Exployer1234]

Even after you are discharged from BK you can still pay any creditor that was listed in the BK. It does not re-open the case.

[MarkM]

The below advice is just my opinion and is not intended to create an attorney-client relationship. In addition, I have no knowledge of any confidential facts, am not a debt relief agency, and probably don't have the right to practice in your jurisdiction anyway ... so, please talk to your own attorney.

Unfortunately, your situation is probably a little more complicated than some of the above folks realize. I do disagree with your attorney's position that returning the negatives would somehow be a reaffirmation of the original contract. The original contract(s) have been rejected in the bankruptcy proceess unless specifically assumed pursuant to a motion filed by your attorney or either assumed or allowed to ride through the bankruptcy pursuant to your Plan.

As I think about the problem, I would say that what you do with those calls from former customers should depend entirely on who actually owns the negatives and copyright to the negatives. There are 3 alternatives when you finish answering the question as to who owns the negatives and associated copyrights now. Each implies a different course of action when that phone call or letter comes in:
1. the customer owns the negatives and associated copyrights -- just return the negatives upon request
2. the bankruptcy estate owns the negatives and associated copyrights -- refer the caller to your chapter 7 trustee (or, in an 11 or 13, you can negotiate yourself with the caller but the proceeds will be used to pay creditors)
3. you own the negatives and associated copyrights -- either give them the negatives (to save your reputation) or ask the caller to enter into a new contract under which you could provide them prints go forward.


You also failed to give some basic facts which could be very important:

1. In the original contracts, who retained the rights to the negatives and the copyright to the work?

The usual photography contract specifies who owns the negatives -- even for events like a wedding, usually the photographer keeps ownership of the copyright for the negatives. This is why people pay for the rights to make additional prints, for example.

If the client retained ownership of the negatives or the copyright to the pictures in the original contract, it should be safe to simply give them back the negatives. You have no legal rights to retain the negatives in that case (unless you were still owed money under your contract) and should simply turn them over upon request.

2. Did you list the negatives as an asset in your schedules?
If you retained the copyright in the original agreement, you should have included the negatives and the associated rights in your bankruptcy schedules -- and, as they were an asset, I'm hoping you did not file a "no asset" case. The reason this matters is that a Chapter 7 trustee cannot abandon an asset that you fail to schedule -- so, if the negatives were not scheduled, they are probably still an asset of the bankruptcy estate. So, if you did not list the negatives as an asset, you now have a problem and please explore this issue further with your attorney.

Incidentally, if you were still owed money under the original contract(s) for services already performed, then you probably should also have listed those receivables as assets in your bankruptcy schedules. It is unlikely that you would end up with any right to collect such receivables.

3. Who owns the negatives and the associated copyright now?
When you filed for bankruptcy, the rights to the negatives passed to your bankruptcy estate. So, analyzing this question requires a bunch of other questions to be answered --
What type of bankruptcy did you file? (7, 11, 13) My comments below are going to assume it was a 7 unless I specify otherwise.
Is the bankruptcy proceeding still open or has the case been closed? (Note: this is something distinct from a discharge.)
Was there a trustee of some sort appointed and, if so, is the trustee still around (from a legal perspective)?

Assuming you filed a chapter 7, to the extent to which the chapter 7 bankruptcy case is still open, technically your bankruptcy estate still has ownership of the negatives. Thus, the most correct response to a call from people asking about their negatives would be to refer the caller to your chapter 7 trustee if he or she is still around . The chapter 7 trustee could then sell the negatives back to the interested party and would then distribute the proceeds to your creditors. If you are in this situation, you cannot safely just hand over the negatives to the caller. If you did so, you would be improperly disposing of an asset of your bankruptcy estate. Arguably, such an action could be used to deny you a discharge -- so the stakes a pretty high here.

Once you have a discharge, the bankruptcy proceeding is closed and the Chapter 7 trustee is no longer around, provided the negatives were scheduled as an asset, there is an argument that the trustee abandoned those negatives and they are now your property.

If you filed an 11 or 13, did you confirm a Plan yet? If your confirmed Plan vested the property of your bankruptcy estate back to you (for an 11 or 13), then the negatives are clearly your property.

If the negatives are your property, you are then free to either hand the people in question the negative back or ask them to sign a new agreement whereby you sell them select pictures from the negatives (retaining the copyright). Now, to the extent to which people had "deposits" down that became unsecured claims in your bankruptcy, you might want to cut them a break in terms of pricing ... if only to help your own reputation.

___


Good luck with restarting your business!

[RedBird1]

[QUOTE=MarkM;426310]

2. Did you list the negatives as an asset in your schedules?
If you retained the copyright in the original agreement, you should have included the negatives and the associated rights in your bankruptcy schedules -- and, as they were an asset, I'm hoping you did not file a "no asset" case. The reason this matters is that a Chapter 7 trustee cannot abandon an asset that you fail to schedule -- so, if the negatives were not scheduled, they are probably still an asset of the bankruptcy estate. So, if you did not list the negatives as an asset, you now have a problem and please explore this issue further with your attorney.


Thank you for your reply. I had actually abandoned this forum because none of the post were helpful........"criticism and sarcasm are rarely helpful"

With that being said you have inspired me with your willingness to take the time to share so much information that is very helpful.

1. Yes I retained ownership of the negatives in the contract.
2. Yes is was filed as a "no asset" case. So I am assuming you are saying that the negatives are in a "no mans land"
3. So at this point if I receive a call from former clients you think I should refer them to the Bankruptcy trustee?

Thanks for you well wishes for my new business....Prior to this bankruptcy I owned this photography studio for 18 years with not one complaint to the BBB. I built this from nothing and photographed hundreds of Weddings during these years. Unfortunately my Mothers death created financial and emotional problems for me that bankruptcy was unfortunately my only option.

Thank you again for your response. It has been extremely helpful to me.

[helpmeout]

[QUOTE=RedBird1;426337]

Thank you for your reply. I had actually abandoned this forum because none of the post were helpful........"criticism and sarcasm are rarely helpful"

Pointing out that you are going to have a major problem with word of mouth when you are trying to get a new business started, especially when it is in the same field as the prior one isn't criticism or sarcasm. It is a simple fact of life. One you are going to have to live with. Giving the prior customers the negatives of their special day would go a long way in rectifying the problem you will have. Because, as I stated before, there is nothing that is preventing your prior customers from talking about their experience with your services and the end product, or lack of in your case.

Referring them to your bankruptcy trustee when your bankruptcy trustee does not own the negatives (you were listed as a no asset case which means the Trustee does not own the negatives, you do) isn't going to help rectify the problem you will have with word of mouth. And may in fact make it worse.

You may not like to hear it but that doesn't make it any less of a reality.

You don't have to give them the negatives of their wedding day, but you are going to have to live with the consequences of not doing so.

[HHM]

The thing is, this entire conversation is academic.

The thing is, the negatives have little or no value to the photographer in this scenario. It's not like these clients are EVER going to come back and request more prints or anything like that.

I look at it from an upside/downside perspective. There is NO upside to the photographer retaining the negatives if a scorned customer demands them. There is only downside.

I guess I don't understand why the fervor to fight the customers on this one. That is why you are getting more negative feedback, because candidly, you are being a jerk about it. Maybe you are in a large enough market where word of mouth won't go very far, but still; if there is nothing for you to "gain" by holding the negatives, why do you care?

As for complexity, the customers have an argument on the copyright issue...since the photographer breached the contract, it is not clear that the ownership provisions on negatives would be valid. It could be argued that in addition to the fee paid by the customer, the right to the copyright is part of the consideration for the photographers performance of the contract (service); since the photographer did not perform; then the copyright stays with the customer.

It will only take ONE scorned customer and a slow news day at the local TV stations to bring you down.

[MarkM]

The copyright issues I think are fairly clear. The default rule is the photographer owns the copyright unless you are in a work for hire type situation -- upon which your employer gets the copyright and ownership of the negatives. The contract adhered to the default rule, so at the date of the petition, you probably had an absolute right of ownership to those negatives. Your rights to the negatives should have gone into your bankruptcy estate as an asset.

Unfortunately, as a result, it does sound to me like the negatives are in no mans' land at the moment. The negatives are clearly worth something if prior customers start calling wanting prints. Indeed, depending on whether you have submitted any of your prior work to the various photo banks out there, good photos can keep earning money for a long period of time.

I would recommend at least 2 telephone calls - (1) to your attorney, letting him know you have now identified an asset to be administered and see if you could re-open the BK case if necessary and amend your prior filings and (2) to your chapter 7 trustee to see if he or she has any interest in marketing the rights to the negatives.

Assuming the chapter 7 trustee has no interest in marketing the negatives, maybe the chapter 7 trustee could write you a letter directing you to return the negatives to any former customer who requested them. It is at least worth asking.

Long term, if folks want their negatives, you want to be in a position to either tell them (a) I'm sorry for the trouble and inconvenience and I can either give you the negatives or I can make prints for you under the following new contract or (b) I'm sorry, talk to Mr./Mrs. X as the negatives got hung up in my bankruptcy proceeding and may be one of the few ways my creditors get repaid. Any answer other than those two is likely to hurt your reputation -- which is probably not worth the money that you could make off of the negatives you are holding.

[helpmeout]

Long term, if folks want their negatives, you want to be in a position to either tell them (a) I'm sorry for the trouble and inconvenience and I can either give you the negatives or I can make prints for you under the following new contract or (b) I'm sorry, talk to Mr./Mrs. X as the negatives got hung up in my bankruptcy proceeding and may be one of the few ways my creditors get repaid. Any answer other than those two is likely to hurt your reputation -- which is probably not worth the money that you could make off of the negatives you are holding.

Actually, only a has the possibility of not hurting his reputation. B will hurt his reputation, period. A makes the customer whole, B does not.

[michaelk1956]

For what it is worth. I am going BK, I have been in business for 6 years as a photographer, I would never ever hold back someones wedding photos. I have read this post over and over and I really hope you see the light here, it does nothing but make our industry that much harder when we have to over come this type of negative publicity.

WPPI and the PPA, did you join the Professional Photographers of America or the Wedding and Portrait Photography International, what did they advise you to do?

It is my belief that you should look to a way to get these photos into the buyers hand. This is your bankruptcy, but these photo are their wedding day. I do not know what your contract reads like but there is always a time and a place to put what is right over what maybe potentially a issue of exposure.

Good luck to you and your clients.

Michael-k