Employee, Work for hire, Who owns the copyrights ?

<p>It started in 2010, Lady running wedding business asked me for help, I'm a photographer and she asked me to take pictures at one of the wedding because of emergency of her photographer or something. I took pictures I gave her CD with JPGs, she paid for my service, same with second wedding. Few months later she contacted me and asked if I would like to shoot more wedding because she like my pictures I said no problem. I shoot about 15 weddings for her in 2011, She paid me for each wedding, those are one hour sessions, wedding at the beach etc, etc. She was charging couples money for my service and giving me part of what she charged couple.</p>

<p>I was giving her CD with JPGs and everything was just fine, I was sending one copy for couple with pictures and she was reviving one copy for her record. I had my logo on pictures that I was showing online, I used some pictures on my website. She asked if I would be interested to take pictures in 2012 season I said yes... but after few weddings she said that I'm using her pictures to advertise my business. I was shocked because she said she owns the copyrights to my pictures. I never signed any agreement with her, she was paying me cash, I never Signed copyrights release papers, We never had any written agreement. She is trying to tell me about Work For Hire which clearly said that work is for hire only if we have written agreement. She is using all my pictures to advertise her business (about 99% pictures used in advertising are mine) I never had anything against because we worked together and It was ok with me.</p>

<p>Now she is telling me that I'm using her pictures.... Pictures taken by me, processed from RAW, with my name in the exif.... She gave me two papers to sign few days ago. She said if you not sign then I will find another photographer. First paper was kind of Work For Hire agreement and second was paper saying that I do not have any copyrights to pictures taken in 2010 and 2011 at the weddings that she booked.... She sent me link to Work for Hire law <strong><a href="http://www.copyright.gov/circs/circ09.pdf" rel="nofollow" target="_blank">http://www.copyright.gov/circs/circ09.pdf </a></strong><br /><br /><br>

It is clear to me that work for hire is only when both sides sign agreement. Plus According to law I'm not her employee because there was no tax withhold, no w-2, and all that other things that employer must "do" to call someone employee<br>

<br />What in this situation ? Who is the copyrights holder ? Anyone can help ?</p>

From your description of the situation (and assuming you're in the US), you are the copyright holder. The practical question here is whether you are willing to turn over the copyrights for all the shots you've done so far and accept a work-for-hire agreement in order to keep working for her.

<p>Her deal few days ago was clear: I can sign the paper and keep making money of her weddings or she will find another photographer<br>

<br />I was trying to be ok with her and I never said anything about using my pictures to advertise her business she helped me to make some money I helped her because she was making money for booking me and she had pictures to advertise business. <br>

<br />She kept telling me that she had 7 other photographers in the future and nobody ever asked for copyrights because it was unappropriated, and it was natural that if she gave them weddings to shoot the pictures are her not photographers..... <br>

<br />We never had any agreement I was taking pictures for the last 2 years. She offered couple option of: minister only or Minister and photographer, 75% weddings she had was Minister Only. She charged $750 for a wedding with photographer. She was giving me $300 and couple had 60 minutes of photography.</p>

<p>Doing my research where is she using my pictures etc I discovered that she was sending emails to people signed as a me, offering prints and canvas, and some Christmas special packages. One her website is a section with the special offer and at the end of the text she put my name, that this is my offer... I see comment left by one of the couple saying: OMG thank you Chris for you offer, my order has been placed, this excellent<br /><br />As far I know this is a very serious violation of federal law am I right ?</p>

<p>My first bit of advice is to find a lawyer - not a photographer who thinks they know the law - and get their opinion. </p>

<p>In the US - absent an agreement (which can be oral or written) to the opposite, copyright is retained by the photographer. The problem / challenge you have is that there doesn't appear to be any written agreement and just to add to the fun, all payment was in cash. </p>

<p>It is obvious from what you have put down here that she has either lawyered up already or gotten smart and realizes that she is in the wrong, as she is asking you to retroactively sign over your work and holding the threat of future weddings over your head. </p>

<p>From what you have written here, you have 3 choices: <br>

1) sign over everything and keep going the way you are<br>

2) don't sign over anything, stop doing her weddings, retain the copyright for what you have shot and tell her to stop using your photos, name, etc...on her site, in advertising and e-mails. <br>

3) get a lawyer and go after her for damages / lost revenue / etc... (which really is a continuation of #2, since she probably won't get you any more business) </p>

<p>Bottom line - it comes down to - do you want to continue to work with her or not? </p>

<p>Dave</p>

 

<p>No I will not work with her anymore, I refused to sign any papers couple days ago. I also asked to remove all my pictures from her website. She said those are her pictures.<br>

<br />She said she gave me a papers to sign only to make everything clear, because in her opinion those are her pictures and doesn't matter if I sign or not</p>

<p> </p>

<p>Do you know if she has registered the copyright to them in her name?</p>

"It is clear to me that work for hire is only when both sides sign agreement. Plus According to law I'm not her employee because there

was no tax withhold, no w-2, and all that other things that employer must "do" to call someone employee."

 

 

I suggest that you re-read the Copyright Office circular. It says that the absence of tax deductions does NOT necessarily mean there no

employee-employer relationship and gives two other types of proof of a for hire relationship. Only some of the conditions are required, not

all. As for written agreement, the circular says that if the relationship is for hire, the copyright belongs to the employer (not the worker). A

written agreement is required if the employer wishes to transfer rights to the worker. Otherwise no written agreement is required.

 

 

Your situation is murky. Were you an employer or a subcontractor? There was no initial agreement as to your status. You were paid in

cash and not provided with regular pay slips or W-2. How did you report the income on your tax return -- as employment income subject

to taxes or as income from self-employment after deduction of eligible business expenses? And here's the "gotcha" question: Did you

report the cash income?

 

 

Next time, be sure you have a signed contract.

<p>Yes I did report my cash income, she gave me 1099 form with amount of money that she paid me in 2011. It wasn't reported as an employment income it was MISC cash I think, thats what 1099 form said.<br>

Wikipedia is saying that :<br>

"Form 1099 series is used to report various types of income other than wages, salaries, and tips (for which <a href="http://en.wikipedia.org/wiki/IRS_tax_forms#W-2">Form W-2</a> is used instead). Examples of reportable transactions are amounts paid to a non-corporate <a title="Independent contractor" href="http://en.wikipedia.org/wiki/Independent_contractor">independent contractor</a> for services"</p>

<p>Which in my opinion means that I was independent contractor am I right ? </p>

<p>A 1099 is typically provided to a contractor, yes. Being an independent contractor doesn't exclude work-for-hire, though. The key is what the contract between you and the "employer" says.</p>

<p>I'm a freelance writer. Even if I provide work to an editor without a contract upfront, I <em>always</em> know ahead of time who will get the copyright. If it is not discussed outright (typically through e-mail), then the publication's web site or other documentation says so explicitly. If it doesn't, I ask. And there is always a written contract (or a written agreement of some form) somewhere along the line, whether it's before, during, or after the work is done.</p>

<p>The work-for-hire circular you linked to makes things quite clear. Has she pointed out exactly how your work qualifies as WFH? Because, looking at the circular (as someone who knows a bit about copyright but who is not a lawyer!), and at what you've posted, I just don't see it. It should be easy for you to quote specific passages from it to support your position. Forex: "<strong>a work specially ordered or commissioned for use as a contribution to a collective work</strong>, 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, <strong><em>if the parties expressly agree in a written instrument</em> signed by them that the work shall be considered a work made for hire</strong>." (Emphasis added.) The circular also provides a distinct definition of "employee," which is the other means by which a work can become a WFH.</p>

<p>And do I understand it correctly that she is presenting herself as you, when she's selling prints &c to people?</p>

<p>Yes it is she was sending email signed my name to customers informing about special offer to buy pictures, books, Christmas cards etc. Also on her website is a page saying about special offer all that stuff and signed my name one the bottom , to look like I was writing all what on page about special offer, it's like I offer those deal etc... but the truth is I have never ever sold one picture to customer I was sending CD to customer and one CD to her for her record, she used pictures that I sent her as a proof that I took pictures, and for her own record. I would never expect that she is going to tell me that those pictures are not mine....</p>

<p>Mark:</p>

<p>If you wish to burn bridges, you could immediately register all the photos you have taken of those weddings with the copyright office. At the same time, send a DMCA takedown notice to her ISP. This will stop her current infringement of your copyright. You have the legal right to do this.</p>

<p>On the other hand, if she had had her act together when you first started, she would have had you sign a work for hire agreement, and you wouldn't own copyright to the photos. I would argue that the ethical course of action would be to work with her so that you both benefit. It sounds like you were in a work for hire situation but without anything in writing. Without the writing part, however, you still own the copyright.</p>

<p>If I were doing it, I would indicate that I don't want to lose copyright of my images so that I could use them in my own marketing, but I also understand that she wants to use them, as well. Seems like there should be common ground where you both can benefit. I would also tell her that she is not to use my name in her business, though.</p>

<p>If she's going to be unreasonable and insist the photos belong to her regardless, then I'd be more likely to pursue the scorched earth policy in my first paragraph. :)</p>

<p>Eric</p>

<p>The original poster *owns* the copyright, however, without a written release from the wedding couple -- you are chancing someone's lawyer for using wedding images to promote your business. [The lack of any written agreement with the lady who 'let you photograph' the weddings is also risking the chance that a past customer may not want their wedding images used to tout her business....]</p>

<p>Good luck!</p>

<p> </p>

<blockquote>

<p>She is trying to tell me about Work For Hire which clearly said that work is for hire only if we have written agreement... ...It is clear to me that work for hire is only when both sides sign agreement.... ...Plus According to law I'm not her employee because there was no tax withhold, no w-2, and all that other things that employer must "do" to call someone employee...<br>

...She sent me link to Work for Hire law <strong><a href="http://www.copyright.gov/circs/circ09.pdf" rel="nofollow" target="_blank">http://www.copyright.gov/circs/circ09.pdf </a></strong></p>

</blockquote>

<p><strong> </strong><br>

Did you even bother to read the link she sent you and posted here? It contradicts the claims you make in the very same post which are quoted above...</p>

<p><em>"the work prepared by an employee within the scope of his or her employment... ...Whether or not a particular work is made for hire is <strong>determined by the relationship between the parties</strong>... ...the term <strong>“employee”</strong></em><br /><em><strong>here is not really the same as the common understanding of the term</strong>... ...<strong>certain factors... ...characterize an </strong></em><em><strong>“employer-employee” relationship</strong> as defined by agency law</em>".</p>

<blockquote>

<p>From your description of the situation (and assuming you're in the US), you are the copyright holder.</p>

</blockquote>

<p>Actually, from the original description, it is unclear that he is. Insufficient facts were given to determine the balance of control under agency theory. Indeed, it may be a very close call even if all the facts are provided. </p>

<blockquote>

<p>The original poster *owns* the copyright</p>

</blockquote>

<p> <br>

As John points out, not necessarily.</p>

<blockquote>

<p>It should be easy for you to quote specific passages from it to support your position. Forex: "<strong>a work specially ordered or commissioned for use as a contribution to a collective work</strong>, 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,</p>

</blockquote>

<p>This has nothing to do with the situation here. </p>

<blockquote>

<p>The circular also provides a distinct definition of "employee,"</p>

</blockquote>

<p><em>"Whether or not a particular work is made for hire is determined</em><br /><em>by the relationship between the parties. <strong>This determination</strong></em><br /><em><strong>may be difficult</strong>, because<strong> the statutory definition of a work</strong></em><br /><em><strong>made for hire is complex and not always easily applied</strong>..."</em><br>

<em>To help determine who is an employee, the Supreme Court in</em><br /><em>CCNV v. Reid identified certain factors that characterize an</em><br /><em>“employer-employee” relationship as defined by agency law... </em><br>

<em>...since <strong>there is no precise standard for determining whether</strong></em><br>

<em><strong> or not a work is made for hire under </strong></em><em><strong>the first part</strong></em><br>

<em><strong> of the definition</strong>, consultation with an attorney</em><br /><em>for legal advice may be advisable."</em><br>

<em> </em><br>

This quote is taken, verbatim, from the circular. You told Mark the definition is "distinct" but, in reality, the source you cite says, as to the situation discussed, "there is no precise standard." <br /><br />Mark is getting very bad advice in this thread.</p>

<blockquote>

<p>Without the writing part, however, you still own the copyright.<br /><br /></p>

</blockquote>

<p>The cited authority, elsewhere in this thread, about work for hire arising under agency law demonstrates that this statement is false. </p>

<blockquote>

<p>you could immediately register all the photos you have taken of those weddings with the copyright office. At the same time, send a DMCA takedown notice to her ISP. This will stop her current infringement of your copyright. You have the legal right to do this... ...He also has the right to be sued and potentially lose liability and legal fees. If she's going to be unreasonable and insist the photos belong to her regardless, then I'd be more likely to pursue the scorched earth policy in my first paragraph. :)</p>

</blockquote>

<p>With all due respect, I recommend refraining from offering these kind of suggestions considering that you just demonstrated a lack of familiarity with the subject in the same post this this appears in.</p>

<p>John:</p>

<p>Please educate me, then.</p>

<p>Everything I have read indicates that ownership of copyright can only be transferred via a written agreement. I'm not a lawyer, so I could very well be wrong. How else can the ownership be transferred?</p>

<p>Eric</p>

<blockquote>

<p>How else can the ownership be transferred?</p>

</blockquote>

<p>Nothing here involves a transfer of copyright. The issue, in this instance, is who has owned the copyrights since the they were created. There is nothing indicating that they were subsequently transferred. Transfers are a different topic altogether.</p>

<p>John:</p>

<p>Absent a written work for hire agreement, how would the copyright belong to anybody other than the photographer at the time of shutter release?</p>

<p>Eric</p>

<p>I know you reading this MM :) </p>

@ Eric Merrill -- The circular clearly says that a hire arrangement can exist without any written agreement. However,

because of the possible confusion in this area, a written agreement is a good idea.

 

As a translator, I often do work for researchers at a local university. For every occasion, I must fill out a detailed

questionnaire on the degree of control I have over my work. The questionnaire must be countersigned by the researcher.

On the basis of the answers, the university's finance department decides whether I am an employee or an independent

contractor. Usually, my cheque stub says "consulting services". Once, I mistakenly checked a wrong box on the

questionnaire. That time, my cheque was an employee cheque and all the usual deductions were made.

<blockquote>

<p>Absent a written work for hire agreement, how would the copyright belong to anybody other than the photographer at the time of shutter release?</p>

</blockquote>

<p> Again, its all explained in the Copyright.gov Circular 9 link in the original post. A work for hire can arise if the hiring party exercises sufficient control over the hired party such that it amounts to an employment situation. If that's the case, then the hiring party owns the copyright. Labeling someone as an employee or independent contractor is not dispositive. While treating someone as an employee tax-wise or not is a factor, it alone is not the determining issue.<br /><br /><br>

To add some background, the copyright employer vs. independent contractor analysis borrows from the same analysis used for other purposes. One of the most common is tax and business expense related. If someone could call anyone who works for them a independent contractor and issue a 10-99, then no employer would ever have to engage in wage withholding, pay employment related taxes, obtain workers compensation, unemployment insurance, be liable for employee's damage causing negligence and follow all sorts of employment related laws. If that could all be done away with by issuing a 10-99, as Mark seems to think, there would be much less employees than we have now because so many business owner would avoid taking on all that responsibility and cost. <br /><br /><br>

As a result, there needed to be a rational way to determine when someone is an employee or independent contractor. Analyzing various factors to determine how much control the hiring party exercises became the method to accomplish that. It was also adopted as the method to figure out if a photographer was an employee or independent. All of which is motivated by business economics while preserving copyright protection in the party that should be able to benefit from it.</p>