Do I Own My Copyright if I Work for a Studio

I currently photograph for a studio. I live and work in Utah and I have been both a salary and contract

photographer for the studio.

The company I work for is currently closing down and selling their copyrights to another business. What legal

rights have I for the use of my pictures that I shot for them? The only thing I have ever signed is a

non-compete, I never signed anything that specifically stated copyright usage, ownership.

Does the other business now own the copyrights to my images? Do I have any rights as the artist of the pictures.

I was paid for my work and the post work, etc was run through the company that is closing.

 

Thanks! The work I shot for them is my portfolio and I want to make sure I can use those pictures on my own

website, print materials, etc.

He who paid for the work, signed contract or not, owns the copyright. They may be willing to sign over the copyrights, but the call is their's.

http://www.photo.net/business-photography-forum/00QFL9

You worked as a "employee" for the studio that is closing. Most - if not all - studios "own" the image produced by the studio, employee-produced images as well.

 

 

 

You might try to work out an agreement, but even if you get to retain the copyright, you would need a release from each customer for any images you plan on using to promote your photography business or on your web-site to advertise your skills.

Get a copy of your employment contract. Go to the Library of Congress Copyright website. There is a circular on "Work for Hire" (Circular 9). Check them both carefully. After you have reviewed your contract and the circular, you may want to discuss with the current owners and an employment attorney.

Where is the obligatory but, incorrect, 'The only way images can be a work for hire is by written agreement' announcement? Its usually here by now.

"He who paid for the work, signed contract or not, owns the copyright. They may be willing to sign over the copyrights, but the call is their's"

 

Oh, That's why its not here. We have a substitute teacher today.

And are you the principal, John? Or maybe you're a lawyer? Seriously, I'd love to know the answer to this question, because by now we've heard so many different, contradictory opinions on this question.

 

Obviously it's a confusing issue. The Copyright website is about as clear as mud about it.

Its not so confusing really....

 

>>>Section 101 of the copyright law defines a “work made for hire” as:

1 a work prepared by an employee within the scope of his or her employment;

or 2 a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion

picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional

text, as a test, as answer material for a test, or as an atlas, if the parties ee in a written instrument signed by them

that the work shall be considered a work made for hire.<<<

 

It doesn't fit in the second scenerio as far as we know so the question is if the first applies, namely, if the

photography was made in the course of employment. This is figured out out by determining the level of control by the

hiring party over the photographer. Various factors, some of which are discussed on the site, are used in the

determination. If there is substantial control, its employment and the hiring party owns the copyright, if there is not

so much control, the photographer owns it. The only part that should be confusing is figuring out how much control

will tip the balance as that can be an inexact science. I hope this helps.

 

Sorry for the cynacism but this has been covered countless times yet the different and contradictory responses you

speak of persist. The paying party wins comment is not as common. No worries. All the wedding photographers

around the country can rest assured that they still own their copyrights despite this declaration.

That makes sense. I read through the copyright law, and I was getting stuck on the written agreement bit in the

next few paragraphs. Seems that only applies if the photographer is an independent contractor, which it sounds

like she was not.

 

In the other thread I guess the question that needed to be answered is whether the photographer would be

considered an employee, since she was not paid. Seems to me she would not have been considered an employee for

that reason.

 

Another question - is a second shooter (for weddings) considered an employee of the primary photographer ? Let's

say this second shooter only shoots for the main photographer on occasion, when called upon and available, and is

paid? It's a question I've seen come up now and again on wedding forums. Thanks.

Tana,

Because it can be difficult to be sure that a "work for hire" scenario exists or doesn't in some circumstances, the easiest way to do establish ownership of the copyrights is to have a legally adequate agreement/contract in place before the pictures are taken. Even though the discussion of "work for hire" points out that the closer one is to a regular salaried employment situation, the more a work for hire situation exists, smart employers include clear "work for hire" language in their employment contracts.

 

The last thing a "pro" needs is for a second or even a casual helper "doing it for the experience and to learn, etc.," to lay claim to some of the pictures from a wedding or other session of some sort. OTOH, the person needing experience or assisting also needs to be clear on their own position and rights as well.

Hi all,

 

Tana, the info John provided actually says it all, and it is as you understood it to be...

 

1. If you are regularly employed as a photographer, the copyrights of the photographs you make while "on the

clock" belong to the employer. This is and has been the case with newspaper and magazine "staff" photographers,

for example. Also regular employees of portrait studios and such.

 

2. If you are hired and payed for a specific assignment of short duration, i.e. a freelancer, the copyrights are

yours unless you and the hiring party sign a "work for hire" agreement.

 

3. There are some "gray areas", such as a more extended, but still not permanent job, working with equipment

provided by the employer and under their very close direction and supervision. Think of these as collaborative

works, where you really aren't creating your own intellectual property, but are capturing someone else's visions

on their behalf.

 

Parties in the "gray areas" would be very, very wise to put something in writing, to clarify and avoid a lot of

potential grief over it later on.

 

In fact, anyone in doubt should get it in writing. Much easier.

 

So, by definition most second shooters would retain their copyright, unless they sign an agreement with the

primary shooter or business owner that says otherwise. An exception to this would be a second shooter who is a

regular and permanent employee.

 

It used to be that "work made for hire" was assumed... That whoever was paying for the job owned the copyright.

 

This was completely reversed with copyright legislation over the past 40 or so years, so that now - with the

narrower exceptions of a regular employee and certain collaborative efforts - all "work made for hire" must be

spelled out in writing for it to be the case.

Hello,

So I worked as a salaried employee up until June 1st and it seems clear now that all of those images are owned by my current employer, soon to be sold to the new owner.

As of June 1st however, I was put on contract, which meant I didn't have benefits, I paid my own taxes, purchased my own liability insurance and set my own schedule. I sometimes used the stores equipment and sometimes used my own, but never with any supervision. The owners aren't photographers so the picture taking was always up to the photographers. The creative direction was lead by the photographers. It sounds like, from what everyone is saying, that I would own the copyright then on images shot under these new circumstances? I hope I'm understanding this right. There never was a work for hire agreement. There is a non-compete agreement, which doesn't discuss images taken.

Thanks for your help. It is has been a confusing issue, but I understand it better now.

I work on an orchard. I don't own the trees, or the land. To be honest, I would have no business being on the orchard if I hadn't been hired. It's piecework, not salary or hourly. I decide which apples to pick-- the owners don't know an apple from an orange. Therefore, I own the apples I pick.

This time for real: As I write this, I'm in a television studio.The video camera operator owns the camera, and

he's using his own judgement and experience frame his shots. He's a freelancer, like all of us here. At the end

of the day, he'll present the producers with an invoice for his camera and other equipment, and for a ten hour

day of his time.

 

Does he own the video he shot? No, he doesn't.

He's here, as an employee-- contractor or not-- to help the producers put together the show.

The producers own the video.

 

How is this any different than for a still photographer working on the same stage, for the same producer, with

his own equipment, working in the same way?

 

Or the wedding second shooter--

Someone opened a business, took the financial risk, payed the taxes, got the business licence, got the client,

signed a contract with the client, and hired you to help him.

 

But you own the photos.

And why?

So you can approach your employer's client, and sell them some photos?

How much are you going to make on that?

Enough to cover all the burned bridges?

 

Or, did you intend this to be a one-time relationship with the first shooter-- make a fast buck on a few prints

and head down the road to the next wedding photographer, like something out of Paper Moon?

 

To be completely honest, I just don't get it.

Well, all I really want to do is use some of my pictures in my portfolio. The company had an agreement (never in writing) that I could use my pictures for advertising purposes when I left the company. I'm not interested in contacting their clients; I'm interested in having access to 2 years worth of hard work and photographs. I just found out the company was closing, and I'm starting my own business. I will be thrilled when I have enough pictures shot under the banner of my own company to use for advertising purposes, but until then I have to show something. I'm not interested in stealing clients. I'm interested in having a portfolio, and I want to make sure I'm not breaking any laws.

By the way, I am just responding to what has been clarified on the copyright issue before. I'm not going to stick it to the company. I'm just trying to start over since I (along with everyone else who worked for the company) just lost our jobs. I'm not disputing the ownership of the photos before going contract. This was my first photography job, and I honored the non-compete agreement. I have nothing else to show for my work.

It appears, according the copyright laws discussed above, I do have a few rights. I'm just trying to understand them.

By the way, I'm not a second photographer. I was one of two main photographers for the company. I'm not a casual photographer out to steal clients out from my current company or the new company. I don't want to burn bridges, I just want to understand if I can show the photographs I took while working for the studio. I'm also okay with giving a photo credit. I just want to make sure I'm doing things correctly and I want to see if I have any rights as the creator or artist of the photographs.

Like I said, I never bothered to check out the copyright issues before, which I probably should have. I trusted the company in our verbal agreement. I'm just trying understand my options. Obviously, worst case scenario for me, is that I don't have a portfolio to show. In essence, starting over. I appreciate the responses. Thanks for taking the time to clarify the issue.

Lindsey, for the record, I wasn't accusing you of anything. As has been mentioned, this comes up a lot, and I was pointing out what, to me, seems to be an absurd position.

 

Maybe you can simply ask them if you may show the photos?

 

>> There is a non-compete agreement

 

These, by the way, are unenforcible in a lot of states, including California.

Lawsuits for breach of signed non-compete agreements here, with a very few exceptions, are considered frivolous and are dismissed.

"I decide which apples to pick-- the owners don't know an apple from an orange. Therefore, I own the apples I pick... ...I just don't get it."

 

It seems you may be trying too hard to reconcile the two situations when there is no need. The situations are similar. The difference is that the government stepped in and made laws to treat the situations differently. People paid to make certain creative things for other people were given a right to own those things and decide how to exploit them and to make bargains with those that paid them on how the creations will be used. Those who are paid by others to make apples were not given that ability. Its that simple.

 

Why was this done? People are more likely to create things of value if they can maximize their use and deter others from simply copying creative ideas of other people. The government deems this to be desirable and created laws to help promote the business of creativity. It can be done with creative arts because, unlike apples, creative expression can be used more than once.

>> People paid to make certain creative things for other people were given a right to own those things and decide how to exploit them and to make bargains with those that paid them on how the creations will be used.

 

Not when you're an employee, which is the context in which the analogy was made.

"Not when you're an employee, which is the context in which the analogy was made."

 

Your analogy isn't necessarily employment even though it it paid work.That's where your confusion lies.

 

The apple picking may be and often is deemed to be independent contractor (IC) work. Its a level of control test to determine if it is employment or independent contracting which is discussed in the circular. If the apple picking work is either employment or IC type work, the owners owns the apples. If shooting photos in a situation is not employment and is instead IC work, the photographer owns the photos and the hiring party gets to use the photos as agreed between the shooter and the hiring party. This is because the government wants certain intellectual property, such as photo design, to be treated differently than things like apples for the reason I mentioned already.

 

When it comes to picking apples, it doesn't matter if the picker is an employee or an IC because there is no government copyright protection for apples.

 

When it comes to shooting pictures, it does matter if the shooter is an employee or an IC because there are copyright protections for photography creations.

 

Once you figure out what the difference between a employee and an independent contractor is, it will all come together for you. You might research that difference online to further your knowledge about how the determination is made.

Hi again,

 

Lindsey, if I were you, I'd be talking to the studio, not bogging about this here.

 

Chances are, since it's closing, they will give you permission to use some of your work done there in your

portfolio. They just need to supply you with the negs or files or whatever and a letter of agreement giving you

permission to use them, in writing of course.

 

And, often portfolio usage doesn't require a model release (plus it's not uncommon for a studio to have one

signed by their customers). That's a separate issue, and one you should check.

 

These are questions only the studio owners can answer.

 

Finally, you say the studio is closing and you are launching your own business. Have you considered buying their

customer lists, and perhaps their files or negs? It might be a great way to bolster your business right from the

beginning.

Ask your boss for a letter granting you the use of any photo for your web or print based portfolio and personal

marketing services. Also, if you have written documentation of the work status change, or if it would be easily

provable in court to document the change in your status, then I would say yes, the copyright would shift to you

on anything made after June. Not to yell, but **** Consult an Intellectual Property Attorney ****. If any of the

work might have secondary market value, or if they refuse your request for a portfolio release, it might be well

worth the cost to have an attorney on your side. Otherwise you risk walking away from this job not being able to

even show anything from the entire scope of your employment.

I wouldn't count on the "employment" status changing from employee to contractor for tax purposes, benefits, etc., to necessarily change the ownership of copyrights. It might but that really would require qualified legal examination of the circumstances, understanding of case law, etc.

 

However, many releases and contracts do allow for passing of "permissions" and ownership to successors and other interests that are assigned rights. This could mean that the current owners might be able to authorize promotional use if they were given those rights. Again, that would warrant qualified legal review of the existing contracts between customers and the owner.

Yeah, I doubt the copyright status changed.

 

You were still a "regular staff employee" working for the studio, even if you were being compensated in a different manner and your hours were flexible.

 

Look at it this way, customers coming to the studio were probably mostly customers of the studio, not customers of you. The customer is responding to an offer the studio made, not an offer you made. They are handing cash or writing a check or making a credit card payment to the studio for services and products it provides, not to you. If or when they go looking for reprints of the photos they had taken, they would most likely contact the studio, not you.

 

On the other hand, let's say you had a customer of your own, who contacted you directly to have portraits done. And, in addition, you had permission from the studio owner to use their facilities. You did so and the customer paid you directly and would seek you out if they wanted reprints made in the future.

 

Here you are "off the clock" and on your own time while making the photos. So, you would own the copyrights. (Note: Your non-compete agreement might preclude all this, but that's a different issue. So this is just a talking point here for comparison and your consideration in relation to copyright ownership.)

 

Now, in no way is this intended to be a legal argument about copyright ownership.

 

It's more just a practical way of thinking about it.

 

In the end, talk to your employer. They may grant you copyright usage of the images you took. Or, they might even sign over the copyright, since they are closing the business. (Or sell the copyrights to you.) They might have customer signed releases that permit commercial usage. Even if it's unclear who has copyright ownership, it would be easiest just to work something out and get it down in writing, and all this is between you and your employer.