Employer Ownership of Copyright

Discussion in 'Business of Photography' started by bryan_t, Dec 6, 2010.

  1. I have a feeling like I will be running into some legal issues here, and just wanted anybody's opinion or advice on where you think I might stand. Here's the deal...
    • I coach at a D3 university. My job title is assistant coach, and my contract is to coach.
    • I'm also a photographer, and I was offered a small salary bump TO MY COACHING SALARY to provide some of my pictures to the athletic department for brochures and the website, and also to admissions folks for various publications. Admittedly, this was a backdoor way of doing things. The bump was minor, but I have fun shooting sports and I'm grateful for anything additional. Because the bump was minor, I also have permission from the athletic dept (not in writing, unfortunately) to sell prints to parents online.
    • I recently started providing prints for the department walls, senior athlete photo collages, etc. in addition to the electronic photos as usual. I have an agreement (again, unwritten) with our athletic director that I could tack a few extra bucks onto the cost of materials for the additional time in production and facilitating the order. The prices were always agreed upon prior, and he would approve my invoices so cost is not an issue.
    • However, the university's business office will not cut a check for my invoices because I am an employee of the university and outside contracting could be a conflict of interest. The issue would require further investigation, and in this investigation they somehow decided that I get paid to take photos, they own full rights to the photos, and I should immediately stop selling my photos. They would approve reimbursement of my materials cost if I could submit receipts, nothing more.
    Regarding the copyright issue, I understand that if you take photos for work then your employer retains rights to them. I feel like this is a gray area, where I work for the university but nowhere in my contract does it say that I get paid for photography and the rights to photos issue has never been touched. This is totally my fault, I know, and moving ahead everything will be in writing. In my eyes, I coach for the university which is where my contractual obligations/restrictions end. I am also a freelance photographer who takes photos at athletic events and provides photos for the university's use. I have a great relationship with the department, the sports information folks, and the athletic director. I'd hate to ruin that because of an issue like this. Where do you think I stand? Should I retain rights to my photos? Thanks in advance...
     
  2. You might want to check your first fact. Most employees (even salaried employees) don't have an employment contract. You might be different; only you would know. In the absence of an employment contract, I believe an employees responsibility is to "serve the master who issues a pay check", and htere is likely an "at will" clause on most corporate policies which means you an dI work "at the will of the master", or not work "if the master wills that".
    Like you, my employer willingly gave money for film and processing, but not equipment. I used my own and even bought some that I knew would be of use to them and me.
    Having been in a similar situaiton, I found it was impossible to extract a second source of income from my employer... so I settled for credits when they used my photography. In the end, the ego-value was much better than any cash would have been.
    Personally, if I were in your running shoes, I'd be thankful that you got a small salary bump (I didn't) and not try to sqeeze more out of the situation. The sad fact is that whoever is approving your invoices doesn't seem to have the consensus of the University. Most managers would consider what you are doing as "double dipping", no matter how legitimate it may really be.
     
  3. The question you need to ask yourself is " How much is blowing up my day job and these relationships worth to me"?
    I don't know how old you are or what your career goals are, but if you are thinking about one day shootign sports as a living I'd use thiese opportunities to practice and hone your craft. I'd also water mark each and every image you send them with your name and contact information.
    To your third point: it is pretty standard that an employee of an organization cannot also be paid an outside contracting fee. No doubt someone smart can figure out a way to structure the deal so that can happen.
     
  4. okay, by the sounds of it, you know what you need to do. Other's will likely disagree with me and cite
    and bring up all kinds of legal this and legal that - most of it is all just pie in the sky anyhow - but i think
    you know what you need to do in this case.

    Your job is more important than your hobby. It sounds to me like youre trying to have it both ways after
    the fact. You sound like youre "up to snuff" on the issues and copyright generally, but youre trying to
    spin this in your direction even though you know you were "work for hire" and that work for hire unless
    you spelled it out means turn over the images. Especially in a situation like this where youre trying to
    contract outside your contract. . .

    I think you just face the facts. Keep the copyright, but I think you lose the control of the images you've
    already shot or turned over. Sure, the college may be in the "wrong" at the end of the day, but do you
    really want that fight for a few bucks? NO!

    If I were you I'd just be kind about all this and talk it over with you administrators and get a new
    agreement in writing. . . everything else youve done is water under the bridge and your fault for not
    making sure you agreed to the terms, in writing, before you started.

    I know that sounds harsh, but you said it yourself, and you really need to look at the whole picture and
    then decide where in your life and your professional development your headed. Do you really want to
    make hay of this now? I dont think so. . . You have the CR, you've lost the control but get a new
    agreement that suits everyone and it's all good . . .
     
  5. Thank you all for your responses so far. You're all right, it's definitely not worth the fight from both reputation and financial standpoints.
    I have a meeting this afternoon about it with the powers that be, but I think they are trying to say that they own every image I shoot. Period. I have never declined giving a full res electronic copy to anybody at the university, and I've known that once I send them out they'll appear all over, and that's fine. But there's absolutely no way they have the copyright, correct?
    It's less of an issue what the university does once they have them and more that I just like to be able to provide them for family as well. Maybe I'll just send all the angry parents who are no longer allowed to buy pictures (I know there will be a few) to the business office and say here you go. You did this, you deal with them...have fun!
    Thanks again for the responses...this is a great community.
     
  6. Why not back away from the copyright ownership issue, unless your bringing a copyright attorney with you to the meeting. It might be better to write up some sort of usage rights agreement and give them unlimited usage rights to the photos you take/provide... and include a statement that you retain the rights to use them also. Isn't that what you really want when you question who owns the copyright?
    From my experience, one can own the copyright yet still have no usage rights.
     
  7. But there's absolutely no way they have the copyright, correct?​
    They may very well have the copyright. That would be typical of a "for hire" creative position. Just like the university would own the copyright on a brochure created by someone in the admissions office. When your creative work is part of your job, and you're not working via a contract that says otherwise, it's very likely that the university created those photos, and just happened to use one of their employees to do the work. Just like they would use an employee to create web content or print material for the university's use.

    Now, you might be able to get the university to license the images to you, so that you can market them. But that's another story.
     
  8. But there's absolutely no way they have the copyright, correct?​
    It depends on what your contract with them says. Likely somewhere in the standard language is a clause or two that gives them title to any intellectual property an employee creates while either being paid by the school or using school facilities and resources to create it.
     
  9. If it is a work-for-hire, and it looks like it is, unless otherwise specified, odds are they do own the copyright. This is a delicate position you are in, and once again demonstrates how important it is to understand terms before agreeing or signing anything.
     
  10. The issues are complicated. My own experience might show you just how complicated. I worked for many years for a large company in research and development. As a condition of employment, I signed a statement agreeing to assign any patents I was granted (or any other intellectual property I developed) to my employer. With my employer's permission, I was arranging to accept an adjunct, part-time position with a university. I would supervise some Ph.D. dissertations and teach a course from time to time. The university also had a requirement that I had to assign any intellectual property I developed to them. I couldn't agree to assign property rights to two different organizations, and I initially balked at signing my second employment contract. However, after close examination, the university's requirement turned out to be much less stringent than my regular employer's -- I only had to assign the intellectual property which was developed during my hours working for the university. The university recognized that my primary employer held primary rights, and I made sure not to work on on any patentable ideas while at the university. (I should mention that my primary employer received a benefit -- teaching, on a limited basis, kept my mind fresher and more productive than it might it have been if I had concentrated only on the narrow issues one often faces in R&D.)
    Although in my case, things worked out well, your situation is complicated by the fact that things were not worked out in advance. That is no one's fault. Approach the negotiation with calm and good will. It might help to remember that you only have this problem because both your employer and your photographic clients, both value your work. Good luck.
     
  11. The school owns the rights to the photos, period, unless, as Matt mentions, they licence the repro rights to you. Otherwise it appears to be a pretty cut and dried case of conflict of interest (double dipping). If I were in your shoes, I would try to use the images to make money for them, not you. Opening a previously untapped revenue source for them will win friends and influence people. This way you get to shoot sports, and gain valuable experience, on company time and add to your school's bottom line.
    Considering the nature of your job tasks, one might use some of the more successful images, and the increased revenue numbers from your clever image marketing efforts of their image assets, as ammo to make a case for a revised job description for you with a more substantive raise attached.
    Nothing is stopping you from taking your school sports shooting experience and going out and using that experience, and your own equipment, and working weekends shooting other sporting events and turning a buck. No conflict there.
     
  12. Typically for US universities, the copyright remains with the academic employee, and the intellectual property rights are split. If you are support staff (I presume) and the photography is part of your job (or you took them instead of doing your assigned job), the copyright belongs to the university. If you want to generate income based on some activities you do during your regular office hours, you have to get permission. For acadmic staff, that would be the permission for outside consulting, for support staff the persmission to sell the photographs that belong to the university. Last but no least, I recommend to inform yourself before you engage in these activities because they could be reason for dismissal.
     
  13. if all youre trying to do is get the images out to the people who want them, that's easy, get a website up,
    have them pay for the prints (if that's necessary), the money goes from the point of sale (the website)
    directly to the athletic department or wherever the school deems it belongs . . . I dont see anyway in
    which you should or could have or make money off those images, based on what you have described. I'd
    say you lost it all - except i think you still should have your name associated with capturing the images,
    but it may well be that the credit is, "staff photographer." and that's it . . . I think you can turn this whole
    thing around. Just do go in there like a bull in a china shop - and by the sounds of it, youre a level headed
    person and will do the right thing!
     
  14. The issue here is not copyright at all but a contract issue. The wording in the contract and the nature of the position will be the ruling detail, not copyright law. If you are an employee and not a "contractor" then certainly they would own the copyright unless you have an agreement otherwise (verbal may not be ok). If you are a contractor, then they only own what the contract says they own.
    But I don't agree that your taking a clarifying stand, in your favor, is job threatening. I don't know too many business offices that trump an athletic director or any athletic directors that will roll over for them nor many companies that expect an employee to roll over either. I think this is something you should review with your contract attorney (if you didn't use one I wonder how effective the contract would be in court anyway!) and with your boss. Get something in writing, even if retroactive--you had a verbal agreement on how things were to work. If you boss lays over on you, you may not have any recourse and you will need to back off. Until then, I don't think you should be an ass about it, you just need to assert your understanding and get in writing what the agreement is from now on--be professional and there should be no issue with reference to your job.
     
  15. I was offered a small salary bump TO MY COACHING SALARY to provide some of my pictures to the athletic department​
    Sounds like it was intended to be made an activity within the scope of your employment. If the contract described the duties and was not modified to reflect the additional duties then its more complicated. Assuming for discussion that it is within the scope of employment, the employer owns the copyrights. Maybe you can enlist support from staff for being granted a license to sell images based on the value you give to the school compared to the amount it would have to pay to a third party. Maybe it will work. Bureaucracies can prove disappointing, however, so be prepared for being responsible for photographic duties with no other return. Perhaps even more duties than you have now. If its not within the scope, you may need to modify the contract so that it is or walk away and go back to the old pay. (Maybe you could be allowed to keep the extra amount already paid in return for use of the delivered photos).
    As far as dealing with customers, its another messy situation. You may have made independent contracts and/or acting as an agent of the school which may not be set up to handle such things.
    This is another illustration for others on why they should avoid providing photographic services for employers without setting clear and memorialized agreements. Favors have a habit of turning in to expectations which can lead to obligations. I'm not sure how it developed here but the obligation part is in full force at least for the moment.
    Good luck getting it all straightened out.
     
  16. The main problem here is that you have nothing in writing. Correct me if I'm wrong, but with the possible exception of your basic employment contract being altered (it should be and probably is, since they initiated it AND offered the salary bump), you have no other contract specifying anything. In the absense of anything else, this is a typical work-for-hire issue, and under this guise, the employer does own the copyright of any and all images created in his (the employer's) paying time AND, in your university's case, on their grounds.
    Now, you COULD potentially argue that the salary bump was minimal compared with the income the university is deriving from print sales (NOT from any other usage of the images) and as such claim unfair treatment in the eyes of the law, but then the difference would have to be MASSIVE (say 1 to 100 or even more) to make this stick, especially since chances are your university is registered under law as a non-profit making institution and would probably prove it never sought to make any profit from prints (IF it was even selling prints).
    My feeling is that IF you take it to court, chances are you will come out the loser and in more ways than one. Personally, I don't think it's worth it. Graciously accept that they own the copyright, ask for usage for self-promotion and then maybe negotiate some sort of deal whereby you make the prints, sell them and then the university gets a cut (possibly a big one). That would leave you with SOME extra income, would generate income for the university (which is always welcome) AND keep you in their good graces...
     
  17. You must always be careful not to offer your employer personal skills you have that are not part of your job description without recognizing that you are giving them away at a loss. An athletic coach cannot expect to get the photographer pay and perks the University would have to offer someone hired to be a photographer. This is true for many kinds of skills in many occupational settings. It pays to be positive about this to keep from feeling shorted over work your employer never expected of you in the first place.
    By independently asking the institution for money for your efforts, you are making yourself known to it, and consequently allowing the people who manage employees an opportunity to explain the rules to you. The employer is the 800 pound gorilla in the room and you will have no choice but to follow the rules, practices and procedures they give you. This is a good thing. You didn't know what you were doing before and now you do.
    Where does the money for your photography come from? The Athletic Department budget. Next year ask for more money to fund the good work you are doing to publicize athletic programs, activities, and even the athletes themselves. Athletics are a large and important source of income for the University. See if they will let you earmark something to get your work published in the school papers, alumni bulletins and web sites. Someone has to take these desirable pictures. It might as well be you.
    How do you get it? By submitting the proper Expense Report forms and documentation everyone else in the Athletic Department uses to claim reimbursement for out of pocket expenses.
    Who pays for your time? The bump in your salary pays for this. If it isn't enough you will have to steal it from your other duties or give away your own time outside your work hours to get the job done.
    What about equipment? You really should be using University owned gear. It will be covered under their insurance if it gets broken, lost or stolen. Try to avoid using your own stuff to prevent having to pay for replacing or fixing it yourself. If you have to use personal gear then make sure you buy your own insurance to protect it.
    What about facilities and supplies? (1) See expense report above. (2) Ask the Athletic Department to work a deal with another department that has the gear you need so you can have access to computers, software and printing services you need. From what you write, you are becoming successful. Do everything possible to use University resources for your photography. You underbid the job so now please ask you main supporters to help you keep from paying for it by yourself.
    Who owns the result? You are an employee now. It isn't yours. It sometimes hurts to learn the rules, but a reasonable alternative to owning a copyright is to set your sights on earning a reputation for making very good pictures. Reputation means a lot in academia. Some would say it means everything. It can bring respect and unrelated photographic work for hire the University could not challenge.
    Good luck. Remember that in life you have to get things wrong before you can get them right! This is what trial and error is all about.
     
  18. Thanks again everybody! My meeting with the business folks went very well. As business meetings typically go, nothing final was decided onsite but moving forward they are going to write up a formal job description for me that includes both coaching and photography. My AD really went to bat for me, saying that they shouldn't own full rights to the pictures because I'm using my own equipment for the job. He (and I) would be happy to purchase university equipment, just give us the money. Of course they balked at that, so in the end the ownership will be somehow shared. That still needs to be worked out, but from further thoughts and the discussion here I'd be happy with rights for self promotion.
    They're also going to give me another raise because I can't charge a fee on top of materials for the products that I provide. My AD even said, this way will be better because I'm confident we can get you more as salary than you would make selling products. There will also be something in writing defining what is expected so I don't end up putting in more hours than I anticipated. I'm moving ahead very satisfied. Now I just need to check into typical contracts, but I think another thread would be more appropriate for that.
    Thank you everybody for the perspective. Again, a fantastic community to be a part of.
     
  19. Bryan, I think you should explore what the University wants with regards to rights--more how they want to use them.
    At the extreme, where you wouldn't give up your copyright, my suggestion would be that you give them unlimited usage rights for an unlimited time, including use by third parties, and that you retain the copyright for all image shot on their behalf. In this way, they don't ever have to worry about you coming back to them and you have not lost your copyright. Beyond that, you would need to determine if you have a right to sell the images to athletes or their families. You may also need to determine if there is any exclusivity to their use of the images--could you sell some to the local paper or ESPN or......?
    If you just start at the exploration of their needs, and their restrictions on your use, then you will get a better picture of where you can take this. Just another point to consider, get it clear what images you take are theirs. For instance, is it just the game or the crowd shots or if you are walking back to your car and see something cool and shoot it, do they own it? Best to get the scope of work that they claim any right to with the wording that leaves you in ownership of all other shots you take.
    By the way, great AD!
     
  20. Bryan. I wish you had paid attention to what Louis Meluso had said. For a few dollars you have missed the opportunity to greatly enhance your position with the school. Instead of being an assistant who is 'both' you could have been seen as a contributor to the school and a guy who goes 'above and beyond the call'.
    Jobs are hard to come by these days. Your philanthropy would have made you stand out among your peers. I see all to many people who do not sign up for the notion that they ought to give their employer a greater return on investment that that employer has the right to expect. But that is often the tipping point when cuts are to be made.
    Anyway. You seem to have dodged a bullet. I would love to own the copyrights for all of the pac-10 shots I made while staff on the newspaper. But I don't. Nevertheless. Were it not for our jobs and their permissions to photograph we would have been shooting from the grandstands.
     
  21. you have missed the opportunity to greatly enhance your position with the school. Instead of being an assistant who is 'both' you could have been seen as a contributor to the school and a guy who goes 'above and beyond the call'.​
    True but he also missed the potential for gratuitous efforts not resulting in much recognition or even turning in to some level of expectation even though it was not a requirement in the job description. If the school is willing to recognize the effort with a pecuniary reward and back it up contractually then another good opportunity will have come to fruition. Its a plus of its own and a positive outcome for a pre-existing sketchy situation.
     
  22. BTW: Isn't photography a good training aid for athletes? Perhaps you have an opportunity to add a video camera to your kit as one of your tools of the trade on the University. Your post was all about your personal enterprise, which guided my earlier response. Later I felt that I had overlooked the obvious. Photography is a wonderful way to observe athletes' performance for review and critique later on. I thought that a review of the tape is pretty ordinary stuff for your line of work. A good solid business case for you to apply your passion for photography to your day job lies here. Looks like opportunity to me...
     
  23. John. With IF you can put all Paris in a bottle. I know it galls a lawyer to see a good deed go unpunished (;)) but my personal call would to have been to trust in the university to recognize his efforts whenever they cashed the checks. The issue of copyright should be the last concern.
    Of course he may get paid for his work. If so, good for him. If he continues to do well it will benefit him. Since it may now be in his job description he damned better do it well. It is a gradable area rather than a nice thing to do.
     
  24. My grim assessment advising caution when offering unsolicited skills to your employer was wrong for you. Clearly your AD is solidly behind you. This is a great outcome indeed.
    Congratulations! Good luck.
     
  25. I'm not sure why you find unpleasant motives in my post Lee since I specifically wanted to see Bryan avoid negative consequences for his "deed" regardless of any copyright status, there was a problem to be solved and my comments reflected that. But OK.
     

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