Amateur Ask to take photos for Primary Employer

Discussion in 'Business of Photography' started by jared|1, Jun 12, 2009.

  1. I will try to condense my questions but some background is necessary....
    Background: My employer is currently redesigning his e-commerce website. The web designer has been hired and has ask for some very specific images to be taken for use on said website. Pictures will also be used in print advertising for the next several years.
    A pro was hired and conducted 2 formal photo sessions (These were directed by the "in-house" advertising person). All rights were surrendered by the photographer. The photos received are not suitable for the purposes outlined above, and the ad person is unhappy with the photos taken at their(ad person) direction.
    I have been ask by this ad person to take some photos that would be suitable for use. These images are being used to show the "personality/identity" of this business. I have been employed by this company for almost 20 years so I understand what this company wants to show to the public whether honest and true or not.
    My employer can't or won't offer suggestions on the look he wants and the "in house" advertising person doesn't seem to understand what images will be useful for this purpose. My understanding is that the images needed are for banner and sidebar style ads, some "what we do" & "who we are" shots, and other generic retail business shots with employees and customers included.
    If I take these photos, I will submit thumbnails on a CD along with a letter to the employer stating that I retain all copyright and that they must pay for usage of the photos in any and all advertisements and websites. I am getting model releases for all persons depicted.
    Questions:
    1. Would this be considered a "work for hire" situation? (Not being specifically compensated for time taking photos)
    2. If this is work for hire do I lose my rights to the images and right to be compensated?
    3. Copyright - I want to retain all copyrights to all of my images so that in the future I have the right to re-sell the images. Would I in this situation?
    4. Do I need a property release from the employer to be able to re-sell the photos?
    5. What are suitable prices for images to be used in this way? (Web price and Print Ad price)
    6. If they don't agree to my terms but use images(remember this is my primary employer for whom I'm taking images)... Is it worth fighting to be compensated?
    7. Should I decline the request to take photos?
    I am currently doing some graphic design/photo/ad work for a different company(start up) that will be compensating me 3-5% profits from the business. I'm not a pro photographer or graphic artist but I feel that I should be compensated for any work that I produce.
    Any suggestions would be greatly appreciated...
     
  2. I think if you have a written agreement, that trumps any conventions about "work for hire" - but if it's important to you, and you think that the fees you'll pay up front will trump your losses or injured feelings if it all goes sour later on then you should see a lawyer.
    My feeling is that if you're not employed as a photographer you're likely to get burned because you and the employer are coming from two different positions. You want to be treated like a freelance pro - and the employer sees that they're already paying for your time and skills in other areas because you already work for them. Regardless of what you set down on paper, these two positions are emotionally incompatible. So were I in your position unless I had a clear and obvious path that led from doing this job to doing more photography and design - I would turn it down and leave it as a job for a real freelance photographer to earn from.
    And when I say clear and obvious path, I mean a AAA-level l "here's my next client, in writing" progression from this job to the next - nothing vague like "I hope to be able to add it to my portfolio and maybe someone else might see it and hire me".
     
  3. When I was in that position at the request of a vice president, I did the photos on as a favor. They loved them. Call it bonus points.
    Your employeer may not love yours and are looking for something vague they don`t understand and can`t explain. Do you think you can satisfy them? If not, you will do the photos over and over and over.
     
  4. I agree with Alec, and I think 7. is your best option. This will likely be a no win situation for you, esp when there is no guidance from management on what they want and vague look and feel desires. Even declining to do the photos could be as well, but it is your best option.
     
  5. Should I decline the request to take photos?

    Yes. Mixing all this up with a current steady job can needlessly lead to other problems as seen by those writing here explaining the headachess they have encountered. Soon enough you may also be expected to produce this extra work as a job requirement. Sure there can be exceptions but is it worth the risk?
     
  6. When I joined a large, international company, and worked for them for 30 years, my photography hobby was known. Also, upon entering the company I was required to sign a document saying that inventions, and products relating to the company became the property of the company. This was to avoid conflict of interest. During my employment, I took a number of photographs similar to which you describe, which pertained to the product, and advanced engineering processes. They were used for company-wide engineering and education purposes. The work was not directly related to my job assignment. There was no property release, no retention of copyright. The work was simply company property, even when using my own equipment. But there was good will that resulted in subsequent awards and promotion within the company.
    My recommendation is to realize an opportunity as an employee and take the photos as a favor to the company, or decline the opportunity.
    My thoughts...
     
  7. Thank you for all the suggestions so far...
    I have not signed a non-compete or any other type of agreement with this employer. I am loyal to my company, and the graphics work I have done is for non-competing insdustries.
    Unfortunately the management memory here is measured in miliseconds, so after brief thanks or praise, criticism regarding hours worked follows after. (ex. After presenting a powerpoint presentation (which was compiled on my own time) on a new procedure I was lauded with praise, and within hours of the praise was ask to cut back on hours I work). I submitted an appropriate bill for that work even though I had not intended to do so, based soley upon management attitude.
    Perhaps a little more background would be helpful: I am a comission/hourly employee, my employer gets confused when I submit my hours/work for payment because my payscales are complicated.
    The process of taking the pictures and editing them would take time that I am not willing to do off the clock as I have been ask once again to cut the hours I work. This leads me to ask about questions 3-6 that I had ask in my OP.
    Right now I'm leaning to declining the extra work as I doubt I'll be properly compensated or appreciated for the photo work I would be doing. If there was honest goodwill or possibility for advancement it would be another matter.
    To date a few images have been taken, 15-30. but none submitted.
    Thanks again everyone for helping me in the decision making process on this one, but more comments will be appreciated.
     
  8. If the photos you've already taken were on company time, I think you're past the point of being able to ask for additional compensation. Conversely, if they were taken on your own time with managements knowledge and now you go to management asking for compensation, the fact that you took photos with-out first clarifying that you would want to be compensated for them is likely to lead to a "bait-and-switch" belief on the part of management.
    At this point I don't think you have any real options other than to continue to take photos if they like what you've done, but only on company time, and chalk-up the whole experience as a reminder to discuss and create written terms before the first photo is taken.
     
  9. Are you sure that you have not agreed to or signed any form of contract? In my job description there is blanket statement that covers other tasks deemed necessary by my manager. That is a generic statement for all our employees worldwide, as I'm sure it is for other corporations. In your case, a phone call to your HR rep might clarify things.
    In regards to your unique working situation, Bill is correct, you should have openly discussed terms prior to acceptance or initiation of the work.
    I'm the corporate photographer for my company, and have been asked on occassion to take portraits or shoot things that some feel are outside my normal duties, or beyond the call, and have been offered additional pay if I so desired. If it involves company time or gear, I thank them for their consideration, decline the money, and tell them it's not an issue with me, just schedule it and I'll be more than happy to occomodate.
    In regards to your posting this question here. I would be very careful about commenting or providing sensitive details of others, such as your boss, whom might happen to google your name and find this very thread. Trust me, last year we hired a lawyer whom gave an hours presentation on the legality and dangers of email and other forms of public communication. It's all legal and binding as evidence.
     
  10. I think that the basic answer is that if you took the photos on company time, by default it is owned by the employer, whether or not you have anything in writing.
    I can understand not wanting to do any of this on your time. Very reasonable position based on the information that you provided. So I see that you have only two choices.
    - Do all of the photography/editing on company time. The most that you can get is your normal pay for this effort.
    - Don't do it.
     
  11. I'm sure I haven't signed a contract of any kind (small business 10-50 employees). The only paper work required when I was employed was the usual tax withholding form (no HR department). My time thus far on this has been done on personal time, however I see everyone's point on this subject, and after some consideration have come to a conclusion....
    I'll provide the employer with images taken and unless a written, signed, and witnessed agreement is "hammered out" before more pictures are taken I'll politely decline the offer.
    Thanks all for the insights and advice.
     
  12. If you give the employer photos this one time without an agreement, it creates a precedent of handing over work for free and it won't take long for them to figure out that they won't need any future agreements because they can just make it a job requirement in the future. The telltale sign of this potential development comes from the story you gave about the employer wanting you to cut hours after praising the work those hours produced. After all, you did say they had this sort of "attitude". A 'we want results but don't want to pay for it' attitude.
    Nip this risk in the bud while you still can.
     
  13. If you give the employer photos this one time without an agreement, it creates a precedent of handing over work for free and it won't take long for them to figure out that they won't need any future agreements because they can just make it a job requirement in the future. The telltale sign of this potential development comes from the story you gave about the employer wanting you to cut hours after praising the work those hours produced. After all, you did say they had this sort of "attitude". A 'we want results but don't want to pay for it' attitude.
    Nip this risk in the bud while you still can.
     
  14. 1. "Work for hire?"
    I think so but would suggest you review your employment agreements, the circular at the Library of Congress and if you have any questions after that, consult either an IP (intellectual property) or Labor attorney.
    http://www.copyright.gov/circs/circ09.pdf
    2. If this is work for hire do I lose my rights to the images and right to be compensated?
    Yes - although compensation may depend on your employment status, etc. If "salaried exempt," then I'd think you'd receive regular pay. If hourly or non-exempt then extra time, odd hours etc., may be compensable.

    3. Copyright - I want to retain all copyrights to all of my images so that in the future I have the right to re-sell the images. Would I in this situation?
    Not if "work for hire," you'd need to work that out with the copyright owner for licenses to use them.
    4. Do I need a property release from the employer to be able to re-sell the photos?
    I'd guess if you "own" the images, that it would depend on the content of the images - although I'm not sure it's clear when or if property releases are required. If they "own" the images, then that can be covered in the licensing,
    5. What are suitable prices for images to be used in this way? (Web price and Print Ad price)
    Not sure, don't do this so wouldn't begin to suggest what might be appropriate - if you could even work out a way to be an independent copntractor/supplier to your employer.
    6. If they don't agree to my terms but use images(remember this is my primary employer for whom I'm taking images)... Is it worth fighting to be compensated?
    If you have taken and provided images, I doubt you'll be able to back into a different contracted arrangement now. It would be wise (maybe?), to not get started doing this - or to accept that you have new job duties and then try to amicably work our some kind of usage. The job market these days is not good and you might find yourself alienating the employer.
    7. Should I decline the request to take photos?
    Might be a good idea. They already seem to have a poor situation with the already taken images and aren't clear on expectations. I guess it really depends on the job, etc.
     
  15. The employer may not want to use images with strings attached; shot by an employee on company time.

    They also might not want software; fax forms; letterheads; inventory spreadsheets; websites and inventions written and created by employees for a business created on company time; ie held as a hostage; when they already own them.

    Maybe you make a cool fax form; and demand a nickle per fax since it is your design. Maybe it is an invention; you have security of a job and now you want a royality too.

    It sounds like you somehow think you own something your employer already owns; created on company paid time.

    One thing you could do is quit your job; then any new things you create could be paid for; if they accept the deal.:)

    If you went to work for Disney as an employee or contractor'; it would be ironed out iron clad as to who owns what.

    About every two months a question on photo.net pops up like this; last fall a chap shot images of fish as an manager of a fish store the wanted ownership of the images; other folks want ownership of stuff created for company websites.
    A common thread is that folks want the security of being an employee and ownership of images shot while working as a paid employee; it all.

    What if you tried to sell the images to a direct competitor; would your employer feel happy? At many places I worked for as an employee; an invention/patent or cool image got one a silver dollar as a token amount; were basically if one didnt sign off the offical dogme one got terminated.

    The whole concept of theses many threads is abit flawed; folks are being paid as an employee; paid for their time and somehow the word "FREE" comes up.

    Folks grow up and quit jobs over these matters. One has a cool idea; one might get squat from ones employer.
     
  16. Spearhead

    Spearhead Moderator

    they can just make it a job requirement in the future.​
    John, I don't see why this has to be in the future. Depending on the job definition for the original poster, which hasn't been given, this could be considered to be part of the job. The only issue would be the equipment - I'm not sure they can require the employee to use his own equipment.

    This isn't unusual. If someone has a specific skill that is needed by a company, aren't they usually asked? Usually it would be prior to an outside contractor being used, which isn't the case here. However, if the original poster's job is "marketing" or "design," there's no reason for the employer not to say that "photography" is part of the job, and in this case, it is work for hire. I really think the only option for an employee in this situation is to quit and come back as a contractor.
     
  17. I am basically a specialized mechanic.
    I don't do marketing or design work for this employer, and until now have never been ask to do anything of an artistic nature. When I was originally ask about the pictures they wanted, I suggested a pro, and that the pro should take all of the photos for stylistic continuity.
    If you look in my portfolio here, you'll see I don't take pictures like the ones needed, not that I can't, it's just not my area of interest.
    In response to Kelly - For the record, I am a paid employee, however up to this point all time spent on this project has been uncompensated personal time, and equipment is owned by me, this only amounts to 30-60 minutes as I started to have doubts about the request.
     
  18. From the link posted earlier about work for hire:
    Employer–Employee Relationship Under Agency Law
    If a work is created by an employee, part 1 of the copyright
    code’s definition of a work made for hire applies. To
    help determine who is an employee, the Supreme Court in
    CCNV v. Reid identified certain factors that characterize an
    “employer-employee” relationship as defined by agency law:

    1 Control by the employer over the work (e.g., the employer
    may determine how the work is done, has the work done
    at the employer’s location, and provides equipment or
    other means to create work)
    • The ad person ask for this work who is also an employee. No equipment has been provided, no direction has been given, but photos would be taken at the employer's location.
    2 Control by employer over the employee (e.g., the employer
    controls the employee’s schedule in creating work, has the
    right to have the employee perform other assignments,
    determines the method of payment, and/or has the right
    to hire the employee’s assistants)
    • It appears to me all of these would apply to my regular duties as a "mechanic", but this falls far outside of my trained skill set.
    3 Status and conduct of employer (e.g., the employer is in
    business to produce such works, provides the employee
    with benefits, and/or withholds tax from the employee’s
    payment)
    • These types of work again are outside my trained skill set, they are not an advertising firm, or a PR firm, I have yet to receive benefits or payment for works, and no compensation has been discussed. Yes, I understand that mistake now all too well.
    If I'm understanding this properly there is a probability this isn't or hasn't been a "work for hire" situation. I'm not intending to gouge my employer, but I would like to have the ability to use these photos sometime in the future if I so choose, particularly in non-competing industries.
    Although I've made my decision to provide the photos already taken as a good will gesture and knowing additional requests for content are likely, I want to have my ducks lined up the next time this request is made.
     
  19. I dont think this is hard.
    It appears you have a lot of resentment for this employer. You have to set that aside. If you do this "on the clock" they own the pictures lock, stock and barrel. The issue of your equipment is moot as far as I can see. You are not using consumables and what little costs you may have are a mere quibble.
    You are, I assume, photographing the company's property so to retain ownership of and use the images you take you would need a property release from the company. You would need model releases from the employees and both you and the company would need model releases from the customers you shoot as these images are being used for advertising.
    You say you have started down this road without an agreement. To withdraw from the project now would seem mean spirited. IF you feel that you have a good enough relationship with your employer to ask to remain on the clock for this time then go ahead. They ought to pay you your normal hourly wage for this work. But they may not.
    If I were your boss and you began to develop an attitude over this 'favor' I think I would have to take that into consideration when I consider your future with the company. You may think they have a short memory when it comes to attaboys but I bet they do not have a short memory when it comes to failings on the part of employees.
    Cutting to the bottom line. These are tough times. It is a poor time to be looking for a job. If I were you I would do the favor for your boss. Smile, work hard and put forth the extra effort. You are not a professional photographer and unless you have, as Alec said, a clear path to leave your current job and go into photography, then don't try 'play one on TV'. There is far more to being a professional photographer than having one client. You should have insisted that a professional was the only way to go. When the first pro failed to satisfy them you should have recommended they find another. I fear you are too far in to do this now without seeming petulant. Shoot the pictures. Work on your own time like crazy to make them great. Smile with pride when you give them to the boss and try to have fun with the project. When you decide to quit and go to work as a professional photographer you will need to know all of this stuff. But you are not a professional phtotgraher so why let this get you down. You like photography. Photograph.
     
  20. I was recently asked to shoot a wedding for a co-worker for my FT job.
    Plain and simple-No. I do not do work for people I work with. For this reason alone. Too many what if's, favor asking, oh could you's. There is always going to be a loyalty issue when you have divided interests.
    D.
     
  21. I'm not sure they can require the employee to use his own equipment.​
    Jeff, you are correct. By definition (law), if they require him to use his own equipment/tools, he is no longer an employee, but a contractor.
    I don't really want to dig out my law book, but this is one of the seven things the court looks at when deciding whether an agent is an employee or contractor.
     
  22. John, I don't see why this has to be in the future. Depending on the job definition for the original poster, which hasn't been given, this could be considered to be part of the job.
    I believe we are on the same page as to there being a potential requirement depending on the circumstances. I'm gathering that the employer has not chosen to excercise any requirement, if it exists, since it hired another shooter and hasn't seemed to command the work to be done. It may have the power to do so but apparently hasn't excercised it yet. Hence the reference to the future.
     
  23. By definition (law), if they require him to use his own equipment/tools, he is no longer an employee, but a contractor. I don't really want to dig out my law book, but this is one of the seven things the court looks at when deciding whether an agent is an employee or contractor.

    I am curious to know what law book says using one's own equipment, by itself, renders one an independent contractor. All the other ones tell us that this condition is merely one factor that is considered, among others, in a balancing test to determine whether the hiring party excercises enough control over the performer to be an independent contract situation or employment.
     
  24. Re: Jeff, you are correct. By definition (law), if they require him to use his own equipment/tools, he is no longer an employee, but a contractor.

    A Judge could sight millions of old draftsman from old Boeing who designed the B17, B24, B29, 707, 747 etc that used their own pencils; triangles; scales; compasses; dividers and thus conclude that they own the 747's design; since their own tools where used?
    It is not rocket science to see if Red is an employee; there is usually social security and medicare taken out of ones paycheck with employees. You cannot be a contractor for the moment to gain ownership of an employers goods; ie the images.

    Re; "In response to Kelly - For the record, I am a paid employee, however up to this point all time spent on this project has been uncompensated personal time, and equipment is owned by me, this only amounts to 30-60 minutes as I started to have doubts about the request."

    So Red do you have a legal document with the payroll dept that has you "off the clock" when you shot the images? If not you have already traded your wage or salary for your work; wether sweeping a floor; writitng a memo to a client; shooting some images. How can work you got paid for already be considered personal time?
    Employees cannot be magically "off the clock"when images are shot to gain ownership of anothers legal goods. All hell will break loose if employees can magically be off the clock during key inventions; discoverys; great images shot. Your employers stance may not be so understanding; more like blackmail; you want a cut of images they already own legally. ie you are a troublemaker; non team player; you want to steal waht your employee already owns already. How can an employee claim he was not compensated; there is a clear history of paychecks being made out; with social security taken out; there is a history of them being cashed at the bank.

    Like it or not that is how it is being an employee. Thus if disgunted you can quit and come back as a contactor; if they want you still. ALL of us have done "stuff" that as an employee we feel we did NOT get a reward for; that is why many folks quit that are creative types; some make it; others return to the safety of being an employee. Even as a contactor your client may want control of the images; there is no free lunch as to being a contactor; and a gravy train of cash from clients images.

    What if the fry man at McDonalds creates a new "how to make frys" roadmap/chart that really helps with production? Can he magically be "on uncompensated personal time"; maybe he used his own pencil and paper too. Folks seem to think he can be magically a contactor for an hour;t then claim ownership; then blackmail ones employer with fees.

    In every one of these many photo.net threads folks are employees; but then they magically mention not getting paid; a very odd thing. Most folks even a McDonalds fry cook get paid as an employee; they get paid to do many tasks. If it is a slow day and he sweeps the parking lot on company time; he still is an employee if he uses his own broom. He also does not own the images if he shoots an new employees badge photo for an ID tag.

    If one is already an employee a court is not going to let somebody be magically a contractor for a moment to allow blackmail of ones employer. Your probably have no invoices for the images shot; no paid bill by the employer. The manager at McDonalds is not going to pay the fry man's invoice for sweeping the fry area when he was on company time; it might be just filed in his employee file as a gooky/goofy letter to talk about in the next employee review.

    If you quit your job an come back in 6 months and have no paychecks; and you charge them 1000 bucks; you are just a vendor; you get a 1099 next January ties to your buisneses Federal ID number; or your Social Security number. You might do the work on Monday; submit a bill on Tuesday ; and get paid when ever they feel like it; you are just another bill to pay. If it is the only thing they need from you; they may string you along and pay you this August; or December. They may fold and you are just a creditor. See legally as an employee you get paid every pay period; as a contactor you are just another bill.

    From a practical standpoint your job is probably worth more than what you will make if you quit and become a contactor to shoot a few images.
    There are all sorts of stuff employess do for employers that the employer owns by default since employees are on the clock as employees. For some reason amateur photographers seem to want the security of a steady paycheck; and ownership of their employers images.
    Casting off the employee tether and quiting has its risks and rewards. You get to pay 15.8 percent in self employment tax; get to pay your own health care costs; get to collect bills. You have more control; but you have to hussle more to stay afloat. One has the option of making a federal case in the matter; maybe you can say a fax form; memo; other idea was don on your own personal time and thus demand your employer fork out cash. In tough times like this they will be thrilled to deal with issues like this.

    Doing on company time as an employee a little free amateur jingles; inventions; lines of code; spreadsheets; images is always going to be an issue with folks who wrongly assume they automatically own the items by default. That is why a pro assume stuff; or do blackmail either; they also know when to run and fold their cards; ie walk away.
    Your employer might also be reviewing bloaded head count; and thus an "Issue" with a employee might be the extra thing to cause termination. This issue needs to be addressed; one has a sick economy; layoffs are going on; an extra issue may be the extra kick.

    One can also just ask for a raise too; this has risks too.
     
  25. John; RE ". All the other ones tell us that this condition is merely one factor that is considered, among others, in a balancing test to determine whether the hiring party excercises enough control over the performer to be an independent contract situation or employment."
    The thing is that Red is already an employee; already "hired" probably awhile back. If he is aleady an employee there is no way that there can be a "hiring party" when shooting the images; he has said he is already an employee.

    One cannot be an employee; then magically a contractor; then back to an employee to suit an employee's claim to an employers goods.

    Maybe it would stick if a legal ironclad document was present; to state who owns what; for this specific shooting event.

    The Big Boys with Disney would do this; ie define ownership; ie avoid all this amateur assuming stuff. A star designer at Disney might be into ABC cartoons for a decade; and want to make new XYZ cartoons; maybe he owns zero of the ABC cartoons; and as an incentive either a stock option or a fee tied to results is placed as a carrot; to make the XYZ project a go.. Thus the designer has a great incentive; and Disney has defined who owns what ; ironclad; all above board; all defined. Disney has a motivated gung ho employee; they both have a mutual interest in a XYZ project. Disney has a the carrot; the rabbit follows. Its is all done BEFORE the project starts; there is no assuming; every dot is in place.

    Actors do this; they might take a lessor fee; but want a piece of the movie or DVD sales. Coming back after the event is over and crying sour grapes will get your remembered; lawsuits get rememebered.
    One should dicker terms before the event; and not assume stuff.

    Assuming because one was an employee and not you "feel" you were not paid for something you did is as old as man.
     
  26. I think you'd have to be crazy to put forth the conditions outlined, unless you hate your job and want an excuse to find another. Either way, your employer WILL remember. Do you want the memory to be favorable or unfavorable?
     
  27. You know, I think the easiest thing to do would be to take the photos as requested, but make them really really crap. So they'd never want to look at them again, let alone use them. Then you're totally off the hook for the future too.
     
  28. Re: Jeff, you are correct. By definition (law), if they require him to use his own equipment/tools, he is no longer an employee, but a contractor.


    Kelly, could you please post an actual legal case, statute, treatise or other authority that states that using one's own tools, ALL BY ITSELF, automatically makes one an independent contractor. If you start at Circular 9 at copyright.gov, it brings up the landmark U.S. Supreme court case CCNV v. Reid on the issue which identified certain...
    "factors that characterize an “employer-employee” relationship as defined by agency law:
    1. Control by the employer over the work (e.g., the employer may determine how the work is done, has the work done at the employer’s location, and provides equipment or other means to create work)
    2. Control by employer over the employee (e.g., the employer controls the employee’s schedule in creating work, has the right to have the employee perform other assignments, determines the method of payment, and/or has the right to hire the employee’s assistants)
    3. Status and conduct of employer (e.g., the employer is in business to produce such works, provides the employeewith benefits, and/or withholds tax from the employee’s payment)"
    The government circular then explains how "[t]hese factors are not exhaustive." The definition of the word factor is "one of the elements contributing to a particular result or situation" Obviously if "provides equipment" merely a factor, it is not the be all and end all that you say it is. Moreover, the Supreme Court didn't even treat the equipment issue as a factor but only as part of a factor. If you are correct, then the goverment circular is wrong and the United States Supreme Court would have had to recently overturn its own decision in CCNV v. Reid or a new federal statute to that effect would have been signed in to law. Could you point to the USSC case or federal statute that does this. If the govermentment publication is wrong, we really ought to know.


    Red is already an employee; already "hired" probably awhile back. If he is aleady an employee there is no way that there can be a "hiring party" when shooting the images; he has said he is already an employee.
    This assumes that the photo shoot is a requirement of his job. If it is, then this is correct. If not, it is wrong. While Red said he was an employee, he did not say whether he is required to shoot the photos as part of the employment, just that he was "asked" which could mean he was given an option or politefully instructed to. My point, which you missed, is that he might be or could become required to do so as part of his employment. You assume that I have concluded the photo shoot is part of his employment. I did not offer any such conclusion.
     
  29. Jeff;
    Re "Kelly, could you please post an actual legal case, statute, treatise or other authority that states that using one's own tools, ALL BY ITSELF, automatically makes one an independent contractor."

    I have heard of none; and have worked as an either an employee or an independent contractor for many decades. I have never heard of such a tale.

    That is why I mentioned "A Judge could sight millions of old draftsman from old Boeing who designed the B17, B24, B29, 707, 747 etc that used their own pencils; triangles; scales; compasses; dividers and thus conclude that they own the 747's design; since their own tools where used?" ie being sarastic; making the silly stretch/fib saying if one used ones one tools; own owns the design or image.

    This whole gamit of playing "it is not part of my job description ploy" is really a lame defense.

    An employer owns all the stuff you do; lock stock and barrel. As an employee you can refuse to answer to to ones boss; walk out of meetings; demand bonusesi; refuse to shoot images; refuse to answer the phone; refuse to dance on a pin. If one is asked to make a new fax letterhead and you are just a flunky; you still do not own the design because you are not a graphics artist.

    The person who shot the images is an employee; NOT a independent contractor. They made the DECISION of whether to shoot the images; make a jingle; make a new fax form.

    One COULD have told ones employer to pack sand; or say one cannot do it; or one is not qualified.
    BUT the employee made the decision to do the task; on company time; paid as an employee.

    An employee can demand/blackmail for a commission on each fax form used; each image made.

    Getting a secure paycheck as an employee with social security taken out for almost TWO DECADES from the same employer really points to a clear cut case of being an employee; one got paid as an employee while shooting the images.

    A person who "I have been employed by this company for almost 20 years " really points to being employee; NOT an instant independent contactor for the moment in retrospect to serve as a gambit to grab an employers images.

    Every thread on photo.net has employees who shoot images on company time; paid as an employee; then they want ownership; when the employer already owns them.
    Just do not assume that as an employee you own stuff done on company time.,
     
  30. As I have stated before, my pay scales are complicated, and perhaps unique.
    I submit items for commission payment & hours worked on specific predetermined duties for payment. I never "clock" in or out. I have always been paid this way. I have 5 different pay scales depending on what work it is I am doing. Artistic/Photographic work has never been included or specified as one of my work duties. As this work up to this point has been uncompensated personal time performed at my place of employment is why I initially ask these questions.
    I now understand much more clearly.
    Regarding an earlier comment by Alec... I considered submitting sub-standard work to prevent being ask to do this again. It is not my desire to do poor work intentionally.
     
  31. art direction + photo shoot + zero experience = chaos
     
  32. Kelly, I did not see Jeff A's comment about the tools and his remarks weren't boxed or in quotations in your post so I thought they were yours. Your analogy makes sense to me now. It is a very good one. Thank you for the clarification. I'll transfer my response to Jeff A's post instead.
    Certainly if the shoot were in Red's scope of employment and, thus, a work for hire scenerio, the issue of ownership is settled. The issue of whether the shoot is actually within the scope of employment needs to be determined first. He told us about some of facts that are relevent to answering that question in the absense of a written arrangement.
     
  33. Red,
    I am not a lawyer, so take my comments with a grain of salt. This applies to most, if not all of the posts in this thread so far. If an answer to your questions is really important then you should consult a legal professional.
    With the disclaimers out of the way, here is how I see it.
    First, here is an interesting link relating to "work for hire." http://www.copylaw.com/new_articles/wfh.html. I do not know if it is authoritative.
    From your description, it sounds like you control your own schedule, at least to the extent that you do not clock in or out.
    Correct me if I am wrong, but it also sounds like you have some discretion over the tasks you accept, and that these tasks are generally mutually agreed upon before you do the tasks, or at least your duties are pre-determined in some way.
    I don't know if your arrangement would qualify as an employee-employer relationship or as an independent contractor arrangement, but from your description it sounds quite a bit like it is an independent contractor relationship. If so then the copyright to your work owned by you unless the arrangement meets a number of stringent requirements.
    According to the link referenced above, one of these requirements is that "prior to commencement of work, both parties must expressly agree in a signed document that the work shall be considered a work made for hire." From your description so far it appears that you have not signed such an agreement. Therefore, it seems to me that the copyright belongs to you, assuming that your relationship is as an independent contractor.
    Your plan seems to be to inform the company that you retain copyright, and that you will ask for payment. You might be within your rights to do this. However, before doing this the first things you should ask yourself is how important is it to you to retain copyright, and how important is it that you are paid for this work. Additionally, as someone else mentioned, do you want to avoid setting the precedent that photography is considered part of your work duties? In addition, you should ask yourself whether your proposed plan will significantly damage your relationship with the company, and if so then how much weight should you attach to this.
    None of us here can answer those questions for you, but once you answer them to yourself then you should talk with a legal professional about the best way to accomplish what you want to do. In the meantime, read what others have posted here to help you formulate your thoughts, but don't make any serious decisions based on the advice given in these posts.
    Of course, you could simply let them have the photos and chalk it all up to goodwill.
    Finally, with regard to the photos already taken, are you sure the photos are stored in a safe place? Digital files are easy to lose, and you probably don't want to have to shoot the photos over again.
     
  34. Red; there is much confusion here; ie as Bryan mentions chaos.

    ***Your first post says " My employer is currently redesigning his e-commerce website."

    and again" My employer can't or won't offer suggestions on the look he wants and the "in house" advertising person doesn't seem to understand what images will be useful for this purpose."

    and again " I have been employed by this company for almost 20 years so".

    The whole first comment has "my employer" twice; and mentions " I have been employed by this company for almost 20 years so".
    ***Explain how one can be an employee for about 2 decaded years and say the phrase " my employer" ;and then one try the contactor card. You need to get your story straight.; or further explain what you are.
    Then last you state "I submit items for commission payment & hours worked on specific predetermined duties for payment. I never "clock" in or out. I have always been paid this way. I have 5 different pay scales depending on what work it is I am doing."

    Abit is abit easy to see if one is an employee or not.
    Employee have paychecks with social security and medicare deducted; your employer matches abunch too. In the employee case in the the USA ( are you here too?; maybe that is the confusion!); there is a clear legal mess of payments you cannot hide from; 20 years of your employers withholdings; matching payment; yearly W2 forms.

    In the independent contactor case there is no withholding usually; you get a 1099 form each year; you pay the social security taxes; about 15.8 percent.

    One does NOT have to clock in and clock out to be an employee; there doesnt even have to be a time clock at all.
    Are you in sales; thus a commission payment scheme? If you submit invoices and are paid like a vendor; that points more to a contactor; but that totally conflicts with your statements of "my employer"; or " I have been employed by this company for almost 20 years so".

    what would a judge; lawyer; or IRS agent say about all this; it seems like in one paragraph one is an employee for 20 years;a dn the last says "I submit items for commission payment & hours worked on specific predetermined duties for payment."

    A Patton type IRS agent in the USA could solve this riddle in his sleep; he peeks at your IRS income tax forms; he checks how you are paid. Ie are there 1099's; or w2's; or both maybe.

    If all your submit-ills:) paid 5 differnt ways are on a W2 and you say your are employed for 20 years from this company; how could one be an instant contractor for the place you have been at for 2 decades?

    I guess I just do not understand how folks bring up the independent contactor thing when you clearly say employee or empolyer many times. If you quit and came back as a contractor that is a different matter.
    One cannot probably hide from 20 years worth of W2's if you are an employee at a business in the USA; it is plastered everywhere.

    So is the "items for commission payment & hours worked on specific predetermined duties for payment." paid on a 1099 or a W2?; or undocumented cash! :)

    In the Building industry one doesnt call ones subcontactors "employees" the are "subs".
    Subs are typically contactors; the get a 1099; not a W2.

    Usually the IRS is scanning for contractors that are really more like employees; thus even if one gets a 1099 be aware that the IRS chaps can review a company and apply "tests" to see if one is really a contactor or an employee.
     
  35. There are many factors that determine whether a person is an employee or an independent contractor. No single factor is definitive. Evidently, that includes the filing of 1099 vs. W2. tax forms, although I understand that tax reporting issues (1099 vs. W2) are given high priority.
    Here is an interesting link that discusses this topic.
    http://www.comptroller.ilstu.edu/downloads/20-factor-test-for-independent-contractors.pdf
    Also, an interesting question is the following: Is there a difference in classification of employee vs. independent contractor in tax law vs. copyright law? In other words, if one is classified as an employee for tax purposes, does that classification automatically carry over to intellectual property matters, or are they somehow considered separately? I certainly don't know the answer.
     
  36. The IRS and Treasury, etc., deal with tax laws. The Library of Congress handles copyright registrations, etc. Congress passed the laws involved. They didn't coordinate the legal definitions of employee and contractor.
     
  37. Hi Red..... Been there, done that....... Let's cut to the bottom line here..... either you accept the offer as a freebie to your company (hopefully talking them into a bi-line "Photography by" etc, or walk away from it. Any Pro will tell you of the pressure placed to "produce the goods". You've said you're an amateur, so use this experience to hone your skills. By all means try to ratify the hours/wages issue, but don't put your "day" job at risk over a few pics. If I was in your position I'd walk away, having said that, I regularly do freebie pics at work.... it keeps me noticed (in a huge company) and hopefully keeps me employed. Leave Pro stuff for the Pro's.
    Best Regards
    Grayham
     
  38. Alan' ask yourself how if somebody has been an employee for a company for 20 years; that they can instantly be a contactor; to lay claim to an employers goods? If this is the case folks could always be a contactor for a day; then rape thir employer. No sane employer wants to deal with unknown blackmail; ill claims to patents; forms; images from an employee. That is why pros establish terms BEFORE the shoot; so it is all above board; no blackmail. It has been well established that an employer owns lock, stock and barrel of what an employer does. One must dwell on theh impression one makes on a 20 year employement; for submitting a bill for stuff you did on company time.
     
  39. my thoughtts for your situation-
    -i would decline politely but firmly. to me this an no win situation for you. they, the employer and ad person, have no real idea of what they want so how will they know or tell you? what happened to the pro photog will happen to you, but with one difference. the differnce being that you work there, so will/can your inability to produce the pics that they want reflect now or in the future on the rest of your job performance, regardlees of what they say now? note, that after you take the pics, if you do, that you have tpo work there. that pro simply walked away, you cannot.
    -i have shot commercial but the circumstances were such that i did not know these people and i was asked and volunteered to shoot the pics. i didnot work there. the work was done gratis, i wanted the experience.
    - and i would side with the view that the pics and all rights belong to the employer not you. you are shooting the pics as an employer and as a paid agent of the company. that cannot be changed. if what you shoot becomes $100000 later, it is the company's not yours.
    -there is no way that if i worked for a company as an employee not as a photgrapher that i would do phtographic work for them. the only exception would be that the employer changed my job to the photogragher of the company and made it worthwhile to me in compensation and there was a future as a photographer later, and this was not just a one time change in job assignments.
     
  40. Replying to Kelly's post of 6/13 10:34pm
    • "... if one didn't sign off the official dogma one got terminated."
    We've all heard the the old axiom "The squeaky wheel gets the oil." While this might be true for actual wheels, when it comes to employees the squeaky wheel is quite often simply replaced!
     
  41. "....My employer can't or won't offer suggestions on the look he wants and the "in house" advertising person doesn't seem to understand what images will be useful for this purpose..."
    forget all the legal mumbo jumbo....that sentence above....all by itself would tell me not to take the assignment. They have no clue what they want....or even if they really want it in the first place. I wouldn't even begin to presume I could please them when they don't even know what it is that would please them. I think you're putting yourself in a complete no win situation. At least say no until they can answer what it is that they want, and get that ad guy to say he wants it in the first place.
    as for the legal stuff.....I'd ask a lawyer.
     
  42. Kelly, you are fixated on an employee being an employee which is well and good but someone can be an employee for one job and an IE for a different job even if the different services are performed for the same person or entity. I won't venture to make a conclusion here as to whether this is a different job and it is unwise for anyone else to in this unusual situation.
    It seems practical however for red to avoid this potential mess altogether. Thomas just gave another reason.
     
  43. John; What is an IE for a different job?; and Industrial Engineer?

    Red did not say he was doing the task for another employer; it was his employer of 20 years.:
    RE " ***My employer**** is currently redesigning his e-commerce website. The web designer has been hired and has ask for some very specific images to be taken for use on said website. Pictures will also be used in print advertising for the next several years.

    A pro was hired and conducted 2 formal photo sessions (These were directed by the "in-house" advertising person). All rights were surrendered by the photographer. The photos received are not suitable for the purposes outlined above, and the ad person is unhappy with the photos taken at their(ad person) direction.

    I have been ask by this ad person to take some photos that would be suitable for use. These images are being used to show the "personality/identity" of this business. *****I have been employed by this company for almost 20 years *****so I understand what this company wants to show to the public whether honest and true or not."
    It is really not unusual for somebody to do many tasks in a company as an employee; here I usually shoot the Ebay photos; but have had a few of my employee shot images for our auctions too; or to shoot images of a damaged truck shipment of goods we receive. None have a title of photographer; or job description as such.
    If a person really is an employee sweeping foloors for 40 hours at ACME; and a Independent Contactor at ACME writing jingles; there would be a clear history of Invoices; 1099's for the Contractor portion; plus the person would call this activity his client; not his employer.
    This whole thread smells of "wanting to be a contactor" to claim ownership; because it asks after the fact: "What are suitable prices for images to be used in this way? (Web price and Print Ad price)"
    If the employee fry man at McDonalds looks back at last Thursday and realizes he shot two employee ID cards; and one employee of the month image; does he lay claim to the copyright? His offical title is Fry Guru. Using this goofy thread as a model he could bill McDonalds saying he was an Independent Contactor for the moment; and demand a royality on these images!

    An assocate at one company long ago tried this" I am a contactor" gambit when some patents got filed. Gee he got terminated. Thus he sued; his lawyer got 5 k; he got 10 k. 12 years later I was in Toyko on business;' and heard the 12 year old story being told from another person ; vendor to the industry I worked in. Thus 12 years later Kilroys name is mentioned as somebody who pulled a stunt; who got paid off; one to avoid hiring.

    The lawyer got the 5 grand; Kilroy got 10k; plus A REPUTATION.
    The ecomony is great; sueing ones employyer; or sending invoices for stuff is easy. Companys are flush with cash; unemployment is low; Kilroy will be hard to replace! :)
     
  44. Kelley,
    Neither you nor I know if Red would qualify as an "employee" or an "independent contractor" for the purposes of copyright law, regardless of the wording he used in (partially) describing his situation in his post.
    Alan
     
  45. If a person really is an employee sweeping foloors for 40 hours at ACME; and a Independent Contactor at ACME writing jingles; there would be a clear history of Invoices; 1099's for the Contractor portion

    There would not be a history of documentation if an IE assignment were brand new. Since this particular task is itself brand new, history of documentation is irrelevent.

    plus the person would call this activity his client; not his employer.

    Not necessarily. Red may be calling the business his employer even if it is a client. Someone might do a shoot for their father and call them their father instead of their client. Some people might do a shoot for their church and call the entity their church even though its also their client. The fact that a shooter uses some title or label for a particular person or entity is irrelevent to determining whether they are an IE or employee. Here, the issue is whether the the business is technically his employer FOR THIS PARTICULAR TASK, not the name he calls the business. He could have called this company his contractor client a hundred times and that, too, would be irrelevent. The status of the images, absent a proper written agreement, is determined solely by the balancing test of factors of control or lack thereof to see if it is a work for hire as we already discussed. Stop fixating on what Red happens call this business. Its totally meaningless.
    Turning back to the relevent issues, the factors showing the amount of control the hiring party excercises, you identify various ones supporting a contention that Red would be an employee. Red identified some which support the opposite. While you may adopt a hardened position that this must be an employment scenerio, I don't adopt any position because I recognize all the factors in the balancing test here, not just the ones for one side or the other. I also account for other variables that we don't know about arising from this complicated scheme Red describes.
    As to practical concerns, yes, successfully asserting legal claims of ownership could cause a win the battle but lose the war situation. No one seems to be disputing that.
     
  46. No matter what one does or how one is employed, the business end of the "shoot" has to be done before the shoot and the images are delivered. Otherwise all parties are going to be playing catch-up with the law and their mutually exclusive "expectations."
     

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