Amateur Ask to take photos for Primary Employer

<p>I will try to condense my questions but some background is necessary....<br>

<strong>Background: </strong> 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.<br>

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.<br>

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.<br>

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.<br>

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.<br>

<strong>Questions:</strong></p>

<ol>

<li>Would this be considered a "work for hire" situation? (Not being specifically compensated for time taking photos)</li>

<li>If this is work for hire do I lose my rights to the images and right to be compensated?</li>

<li>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?</li>

<li>Do I need a property release from the employer to be able to re-sell the photos?</li>

<li>What are suitable prices for images to be used in this way? (Web price and Print Ad price)</li>

<li>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?</li>

<li>Should I decline the request to take photos?</li>

</ol>

<p>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.</p>

<p>Any suggestions would be greatly appreciated...</p>

<p>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.</p>

<p>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.</p>

<p>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".</p>

<p>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.</p>

<p>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.</p>

<p>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.</p>

 

<p><em>Should I decline the request to take photos? </em><br>

<em></em><br>

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? </p>

<p>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.<br />My recommendation is to realize an opportunity as an employee and take the photos as a favor to the company, or decline the opportunity. <br />My thoughts...</p>

<p>Thank you for all the suggestions so far...</p>

<p>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.<br>

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.<br>

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.<br>

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.<br>

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.<br>

To date a few images have been taken, 15-30. but none submitted.</p>

<p>Thanks again everyone for helping me in the decision making process on this one, but more comments will be appreciated.</p>

<p>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.</p>

<p>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.</p>

<p>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.</p>

<p>In regards to your unique working situation, Bill is correct, you should have openly discussed terms prior to acceptance or initiation of the work.</p>

<p>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.</p>

<p>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.</p>

<p>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.</p>

<p>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.<br>

- Do all of the photography/editing on company time. The most that you can get is your normal pay for this effort.<br>

- Don't do it.</p>

<p>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....</p>

<p>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.</p>

<p>Thanks all for the insights and advice.</p>

 

<p>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. </p>

<p>Nip this risk in the bud while you still can. </p>

<p>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. </p>

<p>Nip this risk in the bud while you still can. </p>

<p>1. "Work for hire?" </p>

<p>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.</p>

<p>http://www.copyright.gov/circs/circ09.pdf</p>

<p>2. If this is work for hire do I lose my rights to the images and right to be compensated?</p>

<p>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.</p>

<p> <br /> 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?</p>

<p>Not if "work for hire," you'd need to work that out with the copyright owner for licenses to use them.</p>

<p>4. Do I need a property release from the employer to be able to re-sell the photos?</p>

<p>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,</p>

<p>5. What are suitable prices for images to be used in this way? (Web price and Print Ad price)</p>

<p>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.</p>

<p>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?</p>

<p>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.</p>

<p>7. Should I decline the request to take photos?</p>

<p>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.</p>

<p>The employer may not want to use images with strings attached; shot by an employee on company time.<br>

<br /> 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.<br>

<br /> 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.<br>

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

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

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

<br /> 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.</p>

<p>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.<br>

<br /> 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.<br>

<br /> 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.<br>

<br /> Folks grow up and quit jobs over these matters. One has a cool idea; one might get squat from ones employer.</p>

<blockquote>

<p>they can just make it a job requirement in the future.</p>

</blockquote>

<p>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.<br>

<br /> 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.</p>

<p>I am basically a specialized mechanic.<br>

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.<br>

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.<br>

In response to <strong>Kelly</strong> - 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.</p>

<p>From the link posted earlier about work for hire:</p>

<p>Employer–Employee Relationship Under Agency Law<br /> If a work is created by an employee, part 1 of the copyright<br /> code’s definition of a work made for hire applies. To<br /> help determine who is an employee, the Supreme Court in<br /> CCNV v. Reid identified certain factors that characterize an<br /> “employer-employee” relationship as defined by agency law:<br>

<br /> 1 Control by the employer over the work (e.g., the employer<br /> may determine how the work is done, has the work done<br /> at the employer’s location, and provides equipment or<br /> other means to create work)</p>

<ul>

<li>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.</li>

</ul>

<p>2 Control by employer over the employee (e.g., the employer<br /> controls the employee’s schedule in creating work, has the<br /> right to have the employee perform other assignments,<br /> determines the method of payment, and/or has the right<br /> to hire the employee’s assistants)</p>

<ul>

<li>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.</li>

</ul>

<p>3 Status and conduct of employer (e.g., the employer is in<br /> business to produce such works, provides the employee<br /> with benefits, and/or withholds tax from the employee’s<br /> payment)</p>

<ul>

<li>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. </li>

</ul>

<p>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.</p>

<p>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.</p>

<p>I dont think this is hard. </p>

<p>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.</p>

<p>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. </p>

<p>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. </p>

<p>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.</p>

<p>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. </p>

<p>I was recently asked to shoot a wedding for a co-worker for my FT job.<br>

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.<br>

D.</p>

<blockquote>

<p>I'm not sure they can require the employee to use his own equipment.</p>

</blockquote>

<p>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.</p>

<p>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.</p>

<p><em>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.</em></p>

<p>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.</p>

<p><em>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.</em><br>

<em></em><br>

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.</p>

<p>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.<br>

<br /> 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?</p>

<p>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.<br>

<br /> Re; "In response to <strong>Kelly</strong> - 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."<br>

<br /> 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?</p>

<p>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.<br>

<br /> 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.<br>

<br /> 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.<br>

<br /> 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.<br>

<br /> 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.<br>

<br /> 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.<br>

<br /> 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.<br>

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.</p>

<p>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.<br>

<br /> 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.</p>

<p>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.<br>

<br /> One can also just ask for a raise too; this has risks too.</p>

<p>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."</p>

<p>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.<br /> <br /> One cannot be an employee; then magically a contractor; then back to an employee to suit an employee's claim to an employers goods.<br /> <br /> Maybe it would stick if a legal ironclad document was present; to state who owns what; for this specific shooting event.<br /> <br /> 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.<br>

<br /> 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.<br /> One should dicker terms before the event; and not assume stuff.<br /> <br /> Assuming because one was an employee and not you "feel" you were not paid for something you did is as old as man.</p>