Who owns your images?

This one comes about as a result of the picture of the fireman rescue

of the little kid at the Oklahome City bombing a few years ago. That

photo was taken bay a gas company employee, while ON THE JOB. The

courts ruled it belonged to his employer. Many friends who work for

the National Park Service, forest service, etc., regularly carry

their cameras & film while on the job, on call, or on the clock as

well as when they use their job for special access. As I understand

it, the copyright for any images done on company time-even with your

own gear-will belong to the employer. This holds true for your

photography, drawings, that novel you write while at work, etc.

We all know outdoor workers of various kinds who do this, with the

knowledge of their local bosses. But does anyone know of a case where

the agency/supervisors decided to enforce the 'employee' status and

take the images? Ethically one wouldn't do anything on company time

that wasn't 'their job', right? So we all know those who do and have

done this regularly, even to the point of publishing books-where

almost all the images are shot on 'company time'. National

Park/Forest Service, etc., jobs in the wild are sought after by

photographers constantly. So, how do you handle the

access/camera/employee(work for hire?) status?

Dan,

I get paid for working in a different creative area (research and development)and there is no question whatsoever about who owns anything I create using company time OR resources - The Company does. It seems logical that other types of employers would take the same stance, fair or not.

Dan,

 

You cite the Oklahoma Natural Gas employee that took the photo from the OKC bombing. I have some insight into that case and like most cases it is more complex than just the surface issue of the copyright. Specifically, the employee was on company time, was using company owned equipment, and was performing a company assigned job responsibility. As an employee with ONG one of his job responsibilities was to use company provided photo equipment to document company related equipment issues. You may remember that the first reports of the explosion suggested natural gas as a possible cause.

 

In addition, once he obtained the prints - (processing costs were charged to ONG's account at the film processor) the guy used ONG work time and ONG telephones to shop the photo to Newsweek, Time, etc. Once the photo was published it became an issue, mainly because the mother of the child in the photo requested that further publication be restricted. ONG offered a deal to the mother that proceeds from the further use of the photo be donated to the relief fund for the victims. The employee / photographer balked at the deal and subsequently sold the rights to the photo and kept the proceeds. He also failed to provide ONG with the negative when he was requested to do so. The employee later retired from the company.

 

While this is probably more than you wanted to know about the case, it points out that if you work for a company, and part of your job responsibilities include photography, and they provide you with equipment to carry out the process, then the rights to those photos probably will belong to the company, i.e., a photographer at Glamor Shots. . .

Dan,

 

This is probably a question best answered by an employment, copyright, or intellectual property lawyer (gasp!), but I will give you my opinion anyway - it's probably worth what you are paying for it <g>. An individual's employment agreement will usually stipulate who owns any intellectual property generated by that employee while on the job and what the company considers to be it's intellectual property. Depending on the company, the definition of "IP" can range from very specific to very general. Signing such an agreement is usually a requirement of employment.

 

In the case of my own company, we require our employees to sign over rights to IP that relates directly to our business (development of scientific instrumentation, related software, documentation, and methodologies). If we would discover that an employee had written the great American novel, or created the worlds most amazing photographic images while on company time, it would be a *performance*, not an IP ownership issue for us. The place where it gets tricky is if as a result of the employees actions while on the job (e.g. taking a photograph), my company would somehow end up assuming liability for those actions (being sued by the subject of the photograph for example).

 

If I were going to take a "day job" with the intent of enhancing my portfolio while on the job, I would take a long close look at the employment agreement. Depending on the flexibility of the employer, I would probably even try to come to an agreement in advance as to the ownership of the images, rather than have a surprise after I had already created those images (easier said than done).

 

We actually had just such an agreement with an employee who wanted to be able to continue development of his own software package that we had no interest in pursuing or supporting. The agreement stated very specifically who owned what, who supported what, and how much time we were willing to let the employee spend on his "project" while on the job.

 

FWIW,

-Scott

I posted this aimed mainly at those who do nature photography. The OK bombing photo is the example, but as I read & had explained to me by a number of copyright attorneys, it applies to 'any work' done on employee time, control, etc., even if not part of your job description. Many who work don't have specific job duties spelled out in detail and many Public Lands/wildlife workers in State & Federal jobs carry cameras & shoot for private collections both. This might get to them if their bosses decide they would like use of the images.

The question is more varied then the responses posted. A good web

site to start looking for answers is http://www.netspace.org/edphoto/

the Editorial Photographers web site.

 

The very short answer to the question seems to be unless one has taken

steps to lose copyright (work for hire) then the copyright resides

with the creator. There are many conditions...

Dan, my experience is similar to Scott's. I've signed many "agreements" over the years as either an employee or contrator doing software development. These tend to be quite specific about who owns what. I agree,however, that a ranger or park employee who has not signed such an agreement would be in a gray area...and be aware that the laws vary state by state. California, for example, has some protection on the books for a company's intellectual property rights not extending to non-related subject matter. Other states may not have such laws.

My friend does photography for his work to document different species that might be impacted now and in the future. While he is not concerned about who owns the rights (I'll talk with him later about it), the COMPANY DOES. I cannot convince him to not use his own gear, but the company pays for his vehicle, his film and processing, and everything else that goes into getting the shot.

 

The SAFEST way to go is to "assume" (as much as I hate that) that if done on company time it belongs to the company. If you want otherwise, you need to have it in the employment agreement.

 

David

Dan,

 

Having managed a portfolio of intellectual property recently (patent, patents pending, design patents, copyrights, trademarks), I can write that, when your job with the firm is to produce this IP, there's little question about who owns what. It is reasonable for your employer to demand that you assign the IP over to them.

 

Beyond that, it becomes ugly. Frequently, you may be asked to assign any IP automatically at the time of first employment. This is a negotiable consideration, regardless of how you or your future employer feel about it. There are perfectly good reasons not to sign such an agreement.

 

You make take a photo on your lunch hour, paying for your own equipment and processing, entrance fee to the site, etc. In theory, that image is yours. If you happen to win an award for that photo, your employer may attempt to gain control over that property (prestige, glamour, whatever), claiming that your were using a company vehicle while taking the photo.

 

The hidden agenda is that your employer's legal staff knows full well that the cost of litigation far exceeds your own resources to protect that property. The company can gain significant benefit for little cost. At this point, you will find out who your friends are.

 

Your best recourse is to apply for copyright as soon as possible. It will cost a modest sum (last I recall it was $30) for your submission to the Library of Congress. You are on much firmer ground as a holder of the copyright, unless there was obvious intent to deceive.

 

Good luck to you !!

 

TJ

Dan,

 

Addendum to the above.

 

Believe it or not, US copyright law is written to benefit the individual. This came out of a course on IP I took at the Colorado School of Mines in Golden, CO.

 

I recommend one of the books: "Patent It Yourself," I don't remember the author as I keep the book at home.

I hate when people answer questions when they don't know what they are talking about. The book "Patent It Yourself" is a Patent book. Patents and copyrights are not the same.

 

As for the question, the law is simple, 17 USC § 101 defines work for hire as including "a work prepared by an employee within the scope of his or her employment". If you are a computer programmer, programs you write are within the scope of your employment. But a picture you take during your lunch hour is not within the scope of your employment. If your employer gets pissy and tries to get credit for it, get a new job, your employer sucks.

<i>...a picture you take during your lunch hour is not within the scope of your employment.</i><p>

Many of us are required to sign contracts, essentially confidentiality and intellectual property agreements, which include clauses giving the employer complete intellectual property rights to any and all work completed <i>while on company time</i>. While this may seem pissy on the company's part, and I may be materialistic for signing it, it's often a fact of life in engineering positions (the last four I've signed had the same clause)...

Not only might the employer have rights to "your" product while on company time, but, if you get injured while taking the picture on company time, his worker's comp. insurance will probably get dinged for the medical expenses, etc., as well. While this could be "win-win," playing it out to an ugly extreme might cost someone their job and put the screws to everybody that's left behind.

Some contracts go even further, stating that any work produced "while employed" belongs to the company. This on the ground that you are using knowledge and/or resources from the company (yes, they see your brain as their resource) even in your time off, and you could get tired or hurt which can cost the company in productivity. Basically, such clauses were introduced to prevent people from starting up competing businesses in their spare time.

I do not know if such clauses have been held up in court, but be aware of their existence. It could mean your employer has IP ownership of your holiday pictures.