Sale of a personal photograph

[Lark]

A person I know (not me) sold a digital photograph of a flower to a person who used it on their commercial gardening website. It was sold without stipulations or a terms of use. The buyer colorized the photo and the seller is unhappy. Can the seller claim moral rights to their work and force the seller to remove the photograph (or at least, remove the alterations to the original)?

[WebDon]

Hmmmm...well, I'm definitely not a lawyer, but it seems to me that, although they probably retain the copyright to the original photo, they granted the other party a pretty broad license to use it which would include modifying it if end user wants to.

Just my opinion, of course. I don't think they can really do too much about it if there were no terms of use stipulated at the time of sale.

[Labyrinth]

It was sold without stipulations or a terms of use.

That is a fairly significant error in judgement that I'm guessing the seller won't make again.

Can the seller claim moral rights to their work and force the seller

Moral rights? Not the first concern in a court of law (which I'm assuming is what the "force" portion of the statement is pointing to).

Since there's no agreed to stipulations, the decision would be pretty much left to a judge. IANAL and IANAJ, but I'm thinking a "reasonable person" would conclude that since the seller didn't bother to make modification stipulations (standard in the sale of images) they weren't concerned with modifcations.

Pretty tough to add stipulations to a contract after the fact.

The seller should take it on the chin as a fairly cheap Life Lesson -- at least they didn't sell an entire body of work without stipulations and end up with the buyer using it on a botanical porn site.

[Lark]

Thank you. That was what I was trying to tell the person (that you can't attach strings after the fact), but some "helpful" person brought up VARA. Even if this person had the money and could find a lawyer to take the case, it would hardly seem worth the effort. In addition, isn't it true that monetary damages generally will not be awarded unless the copyright is registered?

[Labyrinth]

IANAL.

Without knowing the photographer or the piece in question, I really shouldn't guess, but... I'm going to guess that the piece in question wouldn't fall under the protection of VARA (which is limited to "fine art" and "exhibition photographs").

In addition, isn't it true that monetary damages generally will not be awarded unless the copyright is registered?

Registration has to happen prior to filing suit. However, if registration is done prior to the violation, you may be able to recover legal fees. If registration is done post-violation, you will not (likely) be able to recover legal fees.

Post-violation registration does NOT necessarily equate to "no monetary damages", but of course everything is easier with pre-violation registration.