HELP: Unique issue regarding image rights, past employer

<p>Dear Photo.net Community,<br>

<br />I appreciate any guidance/advice you have on this issue, it's an unusual scenario for sure.</p>

<p>A few years ago, I was hired as a photo editor/staff photographer at a small magazine company serving about 50,000 readers, with a locally significant online presence. I was very young and naive going into the position, knowing very little about image rights, photographer rights, etc. I contracted to work exclusively with the magazine, and to not work with competitors (just a very small list of other local magazines) for a year after leaving the position, also the contract was poorly written with a loose/vague job description as everyone who worked their wore many hats on the creative team. I was excited, but did not see right through that here was a great opportunity for them to use my art at a very low cost. Whenever I doubted their intention, I just told myself it was a great way to get my work out there, which it was at the time. <br>

My role mostly involved sourcing/selecting all images for the successful publication, but also going out and photographing for selected assignments. It was understood that all images I took for assignments, were property of the magazine since I took them during my time as photo editor/staff photographer. Many of the the images I took I strongly believe contributed to the success and growth of the magazine, elevating the style/brand, and moving the company into taking on more publications. The company grew fast, took on too much with too small of staff, and the company made a quick and nasty split about a year ago as the editors/publishers "broke up" in the stress, and the split was handled very immaturely (competition/territorial over employees and property, "who was going with who", threatening to fire, making many move offices in a days notice) ...basically handled like a nasty divorce with a fight over the kids, kids left to fend for themselves.<br>

It was in this time, that I decided it was in my best interest and job security to not take a side, and to move on and find a new job in a more mature, stable, and predictable work environment. I was also just maxed out, and towards the end of my job there I was pretty disorganized from being overworked, taking on designer roles '& many more. After my announcing of leaving, I was given nearly a week or less to go through all my contributed digital files (literally thousands), with the server in limbo and inaccessible because both "leaders" decided to fight over it, and in the process it was disabled. This eventually provided me with less than a day to go through my work files to have them back in my possession.<br>

Since my leaving, I have miraculously managed to maintain a somewhat positive relationship with both sides (now two separately formed, struggling publication/media companies). They provide me with additional freelance work, I believe to some degree because they know how much they are using me for my images left behind. They continue to unlimitedly post, print my past images to their hearts content, and this is something they don't want to lose. <br>

So here is my dilemma (thanks for reading the novel!). Working there was insane, and file organization was awful, all over the place. Photos got tossed around, between people, stored in random places. Naturally, when I left, there were some photo files of mine left on the server. Some of these photos were images that I took for a separate client, but contributed as what I thought to be a one time use in print for a certain story. My most recent example, a photo I took for a restaurant client (paid me to take it, they possess partial ownership) was used for a cover of an e-publication without my knowledge. <br>

<br />I'm trying to accomplish the following:<br>

-Access to my "one time use" images on the server so I can be assured the are removed (there were so many that I can't possibly remember them all by heart)<br>

- An agreement that in the future, if the magazine uses my images in any way, dated from over a year ago, they ask me permission first. This would only count for photos not shot for an obvious feature story. <br>

These are the only solutions I can think of to help better this situation. Or, am I in a position where I'm forced to just let it go due to my lack of being able to mop-up before I left? Even though I wasn't granted enough time/access? <br>

What are my rights? Or did I give them up by storing them on the server/sharing them in the first place? Anything I can do at this point? How do I go about this to not only protect my booty, but theirs as well?<br>

I've thought about contacting the editors/publishers to speak of this issue, but I in no way can trust that they will react reasonably and professionally. I'm very traumatized from the whole scenario. Also have thought about getting a lawyer, but it seems so extreme. Something needs to happen.<br>

<br />Any advice is greatly appreciated, thank you.</p>

<p> </p>

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<p>I think you might try contacting the publishers first. But, the lack of trust is definitely a concern, and ultimately I think you'll need the services of an attorney. This is not just a matter of determining your rights for the future, but for all the work you've already done. </p>

<p>Corporations are legal entities, so you need a lawyer that speaks their language. Your lawyer will also explain what your options are, and what it will cost you to pursue them. There's no other way.</p>

<p>You don't necessarily need to start with a lawyer. You can write up a simple sheet with what you would like for them and what you can give them. See what the response is. If it's a small publisher, it's unlikely they have an in-house lawyer and may agree or give you some acceptable changes in order to avoid using a lawyer. There may also be an organization that provides free or low-cost lawyers for art services. Google your state name and "lawyer for the arts." </p>

<p>One thing that seems clear is that you have no rights to the photos you took for them regardless of usage while employed unless you can show that you have an agreement that you have some rights to them. Conversely, any photos you did as a freelancer are yours unless there is an agreement to the contrary. However, there is nothing that says they have to go look on the server or give you access for the photos you took as a freelancer and it is within their rights to request payment to locate the files for you or to not do it. If they use them, you can go after the company, but that may not be lucrative depending on what they get for using them, especially since it sounds like you haven't registered the copyright.</p>

<p>Hire an attorney who specializes in media affairs or intellectual rights. There is no way you, uninformed of the nuances of the law where you reside, can possibly hope to prevail without professional assistance. Yes, it will take money and lots of time, and next time you will know better than to go blindly into a relationship without an attorney representing your side of a contract.</p>

<p>If the situation is unique, you need a lawyer. If the situation requires that many words to describe it, you need a lawyer.</p>

<p>If someone here had been in your exact situation -- impossible in insure -- they would still be unable to give you help, because they are unlikely to be in your jurisdiction (which you did not specify). In the US, contract law varies from state to state. I imagine there is even more variety when you include other countries. </p>

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<p>I generally think that situations are commercial before they are legal, and perhaps like Jeff above think the first step is to see what you can achieve by negotiation rather than involve lawyers right away. The problem with going "legal" right away is that its fully possible to spend more to get a solution than the solution is worth; and as soon as lawyers get involved the two ( or in this case three) sides are likely to end up disliking each other and they are after all providing you with freelance work. So best to try a free/non confrontational route first IMO. Also, you don't say who you work for now, and whether there is any relationship between your previous employers and them, but personally I'd think a bit before letting my current employer see that I was suing my past employer(s). Especially if current employer doesn't know that you are freelancing outside your employment, and whether proscribed by any current contract or not, considers that undesirable. </p>

<p>So writing out a list of what you want, leading to the ability to identify and withdraw from both "past employers" access to any photographs for which you believe you own rights, and I guess ideally establishing a price structure for the continued use of those images with permission, strikes me as being a good place to start . Then asking both "previous employers" if they feel able to agree with that. I am assuming here that you understand that any image you took whilst subject to your contract with your original employer and so belonging to your original employer is not yours just because that employer does not exist in that form any more. </p>

<p>The two offshoots of your original employer might not agree of course. They may argue that they don't want a non-employee rooting through their files and deciding on the basis of your recall alone what is "yours" and what is "theirs". They might suggest instead that you provide a list of those images you consider you have rights over, and from what you're saying you'll have difficulty doing that. Or they might want to charge you for the time it takes an authorised person to locate ( or not) any such images They might respond by saying you had no business in storing your own images on their computers, and that any use of images the company did not own should be covered by documentation raised by--err you. </p>

<p>So I think a direct, considered approach which clearly avoids any impression that you are trying to appropriate ownership of or income from work for which your original employer has already paid you, is the best way to go. Doesn't of course mean that I'm sure it will work, and the probable inability to document your contentions fully isn't going to help, but at least if you're careful it is IMO the best way of trying without wrecking more than one relationship. </p>

<p>I have no idea what the worth might be for any photographs they hold that are "yours". But for you to start a legal process with two opponents when you seem to struggle to document your claim, and where you have something to lose, is something to be approached with much care. </p>

<p>Are you the copyright holder for the images stored on their servers? That may be the only legal standing that you have. Send a letter to the publishers first. Send it certified mail. That shows that you made a good faith effort. If you think any dealings are going to be contentious then make sure everything is in writing and documented, don't do verbal communications. If you do end up hiring an attorney your documented effort may help if you go to court. You really need to determine if the images are worth it and do you want to spend unknown thousands of dollars and perhaps still not have the images. Not to mention the disruption a lawsuit will have on you life. It can be very stressful and distract you from others things more productive in your life.</p>

<p>If you want to light a fire under them you may say that they have images owned by other people with effectively expired license terms that they risk getting sued for using if you don't help ferret them out.</p>

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<p>Are you the copyright holder for the images stored on their servers? That may be the only legal standing that you have.</p>

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<p> <br>

And while your copyright is protected, there is no requirement for the company to keep anything on their servers unless you have an agreement with them. Photos you took while employed by them, in the absence of an agreement giving you copyright, belong to them, not you. And there is no requirement to give you access to their servers. This is why the lawyer approach is not worth pursuing unless the one usage that occurred is particularly valuable, assuming you did not take the image as an employee. Since you don't have the copyright registered, it's not going to be that lucrative.<br>

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Unless there was an agreement allowing you to store personal files on a company-owned server or computer, and a right to retrieve them, they don't owe you access.<br>

</p>

<blockquote>

<p>what I thought to be </p>

</blockquote>

<p> <br>

This is the lesson to be learned. Don't "think" about what something is, get an agreement for what you want.</p>

I believe Jeff's response is the more legal accurate answer.

 

1. Did you have a written employment agreement with them? If you did, find it and see if it addresses wok for hire

issues. Its common that companies claim ownership for works and copyright. (Thats why Prince became "The artist

formerly known as" and The Jackson Five became "The Jacksons." Corporate ownership.

 

2. If there is no written agreement specifically giving copyright and ownership to your employers ..... is there any other

written manuals or employee guides that required you to sign off on at the beginning of your employ granting rights to

them?

 

If you signed off on any clause granting them ownership, you're out of luck. You were'n't tricked, just not knowledgeable

of a common practice.

 

3. If they have the rights, approach them to negotiate to get ownership and copyright and the images back. Remember

they dont have to if they own them.

 

4. If by some chance you own them, understand they are under no obligation to keep your files. Speaking as a computer

network administrator, the computers and servers belong to the company. We as the company have no obligation to

preserrve your personal property on our servers. With that said, approach them gingerlly to get access to your images.

Again, they have no obligation to let you examine their servers. In my best Admin Voice I would have told you, "You

should have kept your files also on YOUR computer."