My employer vs. employee copyright situation (input welcome!)

Discussion in 'Business of Photography' started by sonny_beverage, Dec 12, 2008.

  1. Hey everyone - I've found myself in an interesting situation in regards to some photographic work I did for a now former employer of mine, and any input any of you might have would be very welcome.
    For the last 3 months I've been an assistant manager at a large aquarium store. While I was there, I overheard my bosses talking about a new advertising push they wanted to start up, which included brochures, a color photo book for sales/service, a billboard, and a new website. It is important to note that when they hired me they had no idea I was a photographer, and they've admitted this to me several times since. I decided to volunteer my services and equipment (brand new Canon 40D setup w/L & EF-S lenses) to do the photos for them. AND, by the way, no where in my original offer letter's list of expected job duties did it say anything about photography, or anything to do with advertising, promotion, etc.
    Long story short, I did all the photo work, which, when it was all said and done, included over 200 digitial photos. The new brochure, color photo book, and billboard have been completed, and the website is currently under construction (incidentally they plan to use the bulk of the images for the online sale of a variety of saltwater livestock). Unfortunately, I have now been laid off, under very vague and suspicious reasoning, no less. At any rate, I feel extremely uncomfortable with the idea that they have let me go but are going to continue to utilize my artwork for their financial gains. I would very much like to deny any further use of my work by the store. I feel I have a pretty good understanding of the "work for hire" part of the copyright law, and here's why I feel I have a fairly clean-cut case:
    1. Though I was on the clock while doing the photos, the photographic work was NOT within the normal scope of the job I was hired for (not to mention I did most of the work, in terms of processing, on my own time!). I was NOT hired as a photographer, and most importantly there was NOTHING remotely related to photography included in the offer letter I was given (and I still have a copy of it, with a detailed list of each of the position's expected duties).
    2. I was NEVER given any sort of document or agreement to sign which would transfer the rights to the work to my employers.

    I am currently waiting for my lawyer to get back to me on this, but I would love nothing more than to exercise my right to deny my former employer the rights to my artwork. In the mean time, any input you all might have would be highly appreciated!

    THANKS!
     
  2. Listen to your lawyer......your situation is quite complex legally......respects, Bob
     
  3. Thanks, Bob. Though I respectfully disagree in the thought that the issue is all that "complex" - the law says that in order for my employers to have the rights to my work, there must be a work-for-hire agreement...and in order for a work-for-hire agreement to exist, one of two things has to happen: either 1) the work has to be "within the normal scope of employment" (which it very clearly was not - I was being paid to manage the store and it's staff, not as a photographer); in this case, essentially an unwritten work-for-hire agreement would exist.....OR, 2) an actual work-for-hire agreement/document would need to have been drawn up & signed, and as I said, that simply never occurred.
     
  4. <p>Listen to Bob, and take advice from your lawyer only.<br>
    Dave<br>
     
  5. Oh I plan to take the advice from my laywer, by all means, and I'm not looking to take "advice" from anyone here, per say...rather I'm looking for people's thoughts or input, as the thread title states. I'm just looking to see what others have to say, such as in some of the other threads I've seen, where people (who apparently know and understand the rather straightforward work-for-hire law) weigh in on the story or situation....I mean as opposed to people just saying "talk to your lawyer" (no offense)...such as in this thread: photo.net/business-photography-forum /00QFL9
     
  6. Any online advice you are given isn't worth reading other than talk to your lawyer. Without a legal review of your employment contract and knowledge of local labour law, no one can advise you. I hope that's not your real name up their either, cause now your ex-employer can find this info forever.
    You may have been better off to let the ad campaign go ahead before telling the world.
    Oh well...............
     
  7. I actually agree with the guys above... but since you want to talk about it, I'll talk to you. Many years ago I did something similar - phototgraphic work for an employer that was completely outside of my regular job. Unlike you, I resigned rather than being laid off. I felt no ownership of hte photos and didn't mind them continuing to use them. But I made the decision to move on and perhaps would feel differently if they had laid me off.
    Two things you should think about:
    1. "I decided to volunteer my services..." is what you said. Things would probably be different if you said "they found out I knew a thing or two about cameras and asked me to take some pictures..."
    2. The part about being laid off and now complaining might be perceived by some (if not 'many') as "sour grapes". It might not be true, but that might be how it is taken.
    3. What do you want out of this. In legal terms I believe this is called "damages". Do you have a notion of how much you think they owe you; can you explain why this hasn't been an issue until now.
    I believe the person who said your case is "complex". If it were easy, then you probably wouldn't need a lawyer. Good luck!
     
  8. POP TEST !
    If you invented a new aquarium pump
    and also invented a new chainsaw sharpener
    and a new fantastic fishing lure
    and a new popcorn popper
    while working running the aquarium store which invention might your employer have a better chance with saying they own the device you invented while working for them?
     
  9. I respectfully disagree in the thought that the issue is all that "complex"
    Take advice from an intellectual property lawyer. Law is always complex there is always something that can jump up and bite you. It would have been easier if you signed something specifically stating usage.
    I'm not sure why it matters what others have to say. Without your former employers input, our opinions are based only on your descriptions of the job descriptions and oral agreements. The law requires two sides of the argument to be made clear. It is like a doctor diagnosing a patient with only another person describing basic symptoms.
    John
     
  10. Bob, it really doesn't matter that it's my real name, because if he is in fact in conflict with federal copyright laws (yes, we're talking about federal law, which undoubtedly trumps any meager local labor law), then there is nothing more he can do about it, is there? If he is in breach of such laws, then it's clear that he either has to stop using them/pull them from the website/etc, or face legal consequences. So, no I have no reason to hide my name, or the situation as a whole. I never signed any documents, and he obviously can't make them appear by sheer magic.
     
  11. Another POP TEST!
    what if it was not a photo;
    but the layout;
    sketches;
    the new type font you created;
    or if it was a jingle?
    what if its html
    what if its a website that one created for ones employer?
    What if it was just a better way to sort mail?
    What if its just an idea on the way the building front should be repainted; or parking lots restriped?
     
  12. Thanks Brian, I appreciate your addition to the conversation (since that is all I intended to start in the first place - its like watching Sportscenter...really doesn't matter what they say, but it can be interesting none the less!). As far as the "volunteer" bit, your are right, if they knew I was a photog and had asked me first, then it might make things a bit more difficult on my end. And regarding your point on "sour grapes", I honestly don't feel that that has anything to do with it. To be 100% honest, if I had quit the job under perfectly amicable terms, I would still want my work to come with me, and I can't believe anyone else would feel differently. Otherwise, how could anyone not feel a bit used? And as far as "what I want", it really is that simple - I don't want any sort of damages (financial, etc.), I just want them to pull my photos from anything they are using them in, simple as that. As for why it wasn't an issue until now?...the way I see it, if the photos are helping to bring in business WHILE I am employed there (as in on the payroll), then I have no problem with it...in a manner of speaking, anything that helps business is helping my job, my livelihood, etc.
     
  13. Many times the lawyer just presses for a lawsuit and gets a 1/3 cut of the deal. Thus if the out of court settlement is 15k; you get 10K; the lawyer gets 5k. The company pays off to eliminate the problem sometimes; even if its not really a real copyright claim. Then one has to weigh being branded as a troublemaker versus gaining cash for what you believe is actually yours. If its a tightknit industry where folks remember issues; it can be just more of a blackball against future employment. If you are in another industry then there is radically less a burning of the bridges issue at stake.
     
  14. Nope, Kelly, I have no plans of being in the industry at any point in the future, but otherwise that would be a very valid concern, you are correct.
     
  15. OK; dumb question; was the work done on company time?
    IF one is working a normal 8 to 5 job and being paid where does the term "volunteer" come into play?
    Folks swap out who will make coffee; draw straws as to who will fend off salesmen; who will clean up the poop of the bosses dog.
     
  16. .
    I specifically signed out for "lunch" and used my own camera gear to shoot photos while "on the job" so I'd avoid any ownership hassles. Good luck.
    .
     
  17. "I'm not sure why it matters what others have to say."
    It doesn't John... but some folks appreciate the opportunity to talk things out. It is only when some actually believe every word spoken on the internet as "truth" that there becomes a problem. :)
    Joe O.: Here is something to think about. My experience working with a couple of lawyers is that you'll get good service in only two different situations: a) there is a large amount of damages that will lead to a large settlement or collectable judgement (of which the lawyer gets a substantial cut for professional services rendered) or b) the client (that would be YOU) has 'deep pockets' in a "matter of principle" type of suit. That is why I asked if you have given thought to "damages." Once upon a time I needed a lawyer to stettle a trademark infringement situation. I'd characterize it as "situation b, from above" except I was basically poor as a churchmouse. The trademark infringement was making me poorer so I felt the need to fix the situation. A lawyer offered to write a letter demanding that the infringer stop using our trademark. That cost about $600... in 1980 or so. When the lawyer was asked by me, 'what if they ignore the letter?" he basically said, "you don't have enough money to make the next move." (I had a very small business and the damages were in his estimation... essentially negligable.) The good news was that they complied with the letter. Otherwise I suppose it would have been a good lesson on how I should/could have done business better.
     
  18. Yes Kelly, it was done on company time, and by "volunteer" I mean I offered to do it. But I think you missed the most important point in all of this. EVEN THOUGH I did this on company time (on the clock, etc.), according to work for hire law, an "unwritten" work for hire agreement would only be valid IF what I was doing was "a work prepared by an employee within the scope of his or her employment" (quoted directly from Section 101 of the US Copyright Law), and if you read the point by point breakdown of my duties in my offer letter, NOWHERE in that document does it say anything about photography, media, advertising, promotion, or contribution to anything remotely related to this type of work. So, the only other way for them to claim the rights to my work is through an actual written agreement, and no one ever drew one up or signed one.
     
  19. I would say you have no claim. They paid you under your regular employment wadges. Just because it doesn't say photographer in your employment offer letter doesn't mean it can't be part of your job. If you did the shoot on your own time and billed them it would be a little different. Using your own equipment means nothing - that was your offer.
    I am pretty sure you didn't tell them, "here, I will do the photography for you and you can use it as long as you keep me employed". That is essentially what you are saying after the fact just because you are bitter about losing your job.
     
  20. I am not a familiar with US law. From a moral point of view though "you volunteered" to do it, you volunteered your equipment and then you willingly gave them your prints without signing a document to protect them from misuse. I am really sorry you have lost your job but prior to that you seemed to be enjoying the photography project that came your way. Since you gave your time, your equipment and your prints happily to begin with why not walk away happy to see your stuff made it to print. Next time protect anything you don't want to give away in writing.
     
  21. Kelly... I love your Pop Quizzes!
     
  22. No Jon, to be honest, I am quite relieved to be out of what was becoming a rather unpleasant work situation (poor pay, bad hours, etc) so I have NO interest in getting that job back. And it really has nothing to do with being bitter, so folks, please stop bring that up. As I said, even if I had moved on amicably, I would not have felt comfortable with them continuing to profit on my artwork. And as far as my duties are concerned, you should give the Copyright Act a read, because it does in fact matter that it wasn't in my job description...otherwise why would that clause be there in the first place? A good example of someone who would have photography as "part of their normal scope of employment" would be someone for a newspaper or magazine...in that case is is a given (unwritten) that the photos are the property of the employer. When I was in school I worked as a student photographer - in that case, obviously the photos are the property of the employer..."in the normal scope of employment."
     
  23. Thanks for your response, Kait. The law does state that anyone owns the right to one's photos from the moment they are created. You don't have to create a document to protect them, unless of course you work as a photographer (for a magazine, etc), and in that case, if you take a shot that you want to protect as your own, you would have to make your employer sign the exclusive rights to you. Otherwise, in any other case, the images are yours and yours alone, UNLESS you intentionally sign them over to someone else.
     
  24. Thanks for the link to the Copyright Law, Kelly! As I said, the work for hire part is fairly straightforward....
     
  25. Joe -
    It does matter if you used your real name on this thread, since there's this search engine thingy, called Google that can search the web for anything. I type in my name and on the first page - There's Photo.Net .... But I'm sure you're safe - their lawyers probably haven't heard of it and certainly wouldn't use this against you.
    By the way - My 2 cents worth - It is a complex legal issue since you were being paid while you did the photos, and I've learned that there is no such thing as "volunteer" while you are at work. It's their time, their money, and they can ask you to do a lot of legal things that don't fall within your job description.
    Dave
     
  26. Study up on CCNV versus REID and see a lawyer.
     
  27. "And it really has nothing to do with being bitter, so folks, please stop bring that up."
    Joe, this is the issue I mentioned earlier. I don't think anyone means for you to take it personally. Unfortunately it will always keep coming up. It is unfortunate, but something we all have to live with in situations like this.
    I very much agree with your comment about folks needing to read the copyright law. Folks should also read enough "how to run a photography business" material to keep these stiuations from happening. It is the lack of good business practices (on both ends) that causes your situation to be complex. If, for instance, there was a clear violation of an agreement it would be much more simple.
    Personally I understand where you are coming from... but fear that there are enough unstated terms to make it unresolvable. What's more, I get the impression that hte employer isn't big enough to be willing to "settle" as Kelly suggested.
     
  28. Kelly, not sure if you were meaning to point to that particular page regarding the definition of "employee", but that point is not really in question...I was definitely an employee. But that's beside the point...just because you are an employee doesn't mean the employer has automatic rights to your work (unless photography is clearly a part of your job, as in working for a newspaper, magazine, public relations office, etc).
     
  29. Yes, David, but the other "legal things" they may ask me to do have nothing to do with copyright law. And apparently I should never have used the word "volunteer"...I really meant that loosely, my bad people...obviously I did it on company time, but, ONCE AGAIN, that is beside the point. And as far as using my name, who cares if anyone else's lawyers, police, attorney general, FBI, the President, Elvis, or the Pope see what I am writing here? I have said nothing to slander anyone, or anything that may need to hide in any way, shape or form. Just discussing the facts of a situation and looking for some friendly input from fellow photographers? They can read it, print it, post it, publish it, and broadcast it all they want...what's the problem? =)
     
  30. "I decided to volunteer my services and equipment"..."I feel extremely uncomfortable with the idea that they have let me go but are going to continue to utilize my artwork for their financial gains. I would very much like to deny any further use of my work by the store."
     
  31. my 2 cents worth, you agree to let them use your work, you volunteered to do the work while on their time, they had no idea of what you were capable of (I imagine you were on their clock and getting paid while they wondered whether it was worth what they were paying you). I think you need to listen to your lawyer if she/he comes back and says no case. Now layers work on hourly rates with no guarantee of results, are you willing to pay thousands of dollars and lose at the end, or maybe win but no money for winning? In that case look at the bright side now you have some published work.
     
  32. I'm no lawyer, although some of my best friends are lawyers ;). I do think that the fact that you volunteered to add this to your other duties and were paid for doing it makes your case "difficult."
    As one lawyer said to me when someone was threatening me with an absurd lawsuit, some lawyers will do anything for pay, no matter how stupid or hopeless they might privately think it to be. If a lawyer won't take it on a contingency basis (they get paid only if there is a settlement in your favor) then I think you will have your answer as to whether you really have a case.
     
  33. More often than not, anything created by an employee during the course of employment belongs to the employer, regardless of whether it was related to the type of employment or not, unless explicitly spelled out otherwise in a binding and legally executed contract.
    Still, there may be no reason why you could not also use those images for whatever purposes you desire and the former employer would then need to go after you if they disagreed, right?
     
  34. Me thinks your former employer is better off, in a couple of ways. As to your future employer, OY Ve.
     
  35. This is just my personal opinion and may not be what you are hoping to here, even though I do sympathize.
    You volunteered to do these photos for your employer to use in their advertising. You did this without expecting further compensation. The reason's probably don't matter, it could have been both fun for you and you were using your talents to help the business you were working for. You were being a team player.
    People who work for pharmaceutical or technology companies come up with great ideas and new medicines and technologies, in the end the company owns these inventions, not the person who actually came up with the work or ideas.
    In your case it will be the lawyers and the legal system that decides. The former employer could also have a counter case, as they have now invested time and expense making a website and print advertising using work that you volunteered to do for them with a verbal agreement. You pretty much have stated so yourself publicly in this thread. It may be the most you could hope for is having your name credited for the photographs but this is only an opinion. Listen to your lawyer.
    I sympathize with you, I am sure it really irks you that you got caned , especially after this cool work you did for them. No loyalty to you, was there. I wish you the best of luck, I hope your lawyer can get you satisfaction or compensation. Listen to your lawyer, especially if you have to walk away from this.
    Keep this in mind also, you did not give them exclusive rights to the photos either, so even if they end up using your photos, this work is still part of your portfolio. You possibly could grant others use of the photos, like other competing aquarium shops. You will always be able to show this work as part of your portfolio. But check with your lawyer and don't go by what I say. This is just my opinion.
    I wish you the best of luck. Regards, Mark
     
  36. One suggestion: make a CD with your images on it. Then spend the $50 or $60 needed to register the images with the Federal government's copyright office, making the copyright of the images a legal right and your property.
    Once you have done that, you will get better advice from your lawyer.
    (Had the fish store owner provided you with a camera, lenses, etc., then the area of 'employer copyright' would be more clear.)
     
  37. Joe Kelly, not sure if you were meaning to point to that particular page regarding the definition of "employee", but that point is not really in question...I was definitely an employee. But that's beside the point...just because you are an employee doesn't mean the employer has automatic rights to your work (unless photography is clearly a part of your job, as in working for a newspaper, magazine, public relations office, etc).

    One tactic folks take is they were not an employeel; ie they were an independent contactor; ie no SS taxes; they used there own tools; there were told what task to do and recieved no direction etc etc.
    For instance, under United States copyright law, the creator of any copyrightable work (who is not a bona fide employee or otherwise in a work made for hire relationship) owns all rights to that work except if there is a written agreement transferring some or all of the creator’s exclusive rights. However, in the absence of that written agreement, a non-exclusive transfer of rights can occur.

    Thus I wonder about your statement in a non-lawyerly lay way; ie
    But that's beside the point...just because you are an employee doesn't mean the employer has automatic rights to your work (unless photography is clearly a part of your job, as in working for a newspaper, magazine, public relations office, etc).

    I wonder since you say you were an employee; and during your employement working for an aquarium place you shot aquarium photos; it sure sounds like thats in the spirit of your job. This is why one should see a lawyer.Your really want to find if you really have any ownership; so you do NOT get sued for using THEIR images at a competitor. The purpose of a lawyer is to weed thru this stuff. Lots of folks "voluntier" for "other" stuff while working at a job; if you were still being paid I fail to understand the legal basis of what the term voluntier means. One could "voluntier" to sweep the floor; clean a toilet, write a poem; write software for the companys Xmas card list.
     
  38. As a brain tease why would any employee assume that they do while at work and being paid as an employee is their own to keep?
     
  39. See if your lawyer; ask him about :
    Work made for hire" thats in the 1976 copyright law; one that says the author is you employer. Ask him/her about the word scope in:
    Section 101 of the copyright law defines a "work for hire" as : 1 a work prepared by an employee within the scope of his or her employment 2
     
  40. FWIW: I see a moral here even if it makes no difference to Joe's story. It is very common these days for employees to be "overqualified" in one way or another for the actual work they're hired to perform. Outside interests, native skills, and previous experience may equip an employee to perform tasks that would have an immediade benefit and obvious value to his employer EXCEPT that he is not paying for them! It is always up to the employee to decide whether it ever helps him to reveal and then offer work products an employer is not expecting and would never think to request. Photography is Joe's example... (BTW Joe, your employer got the photographs, not the photography! He could make a case that instead of minding the store you were screwing around with your camera.) Other instances would include the person who knows how to do computer support work. It would be really tough for a person working for a lower wage to have his boss pay him the same rates as the company would have to pay a professional for the same work.
    There is no clear answer I have for this, especially in support of low paying retail occupations. I think the principle you should examine, and then take to heart, is that if you offer unsolicited things you make in one way or another to your employer for his use without asking for compensation, then the result is his and not yours. You cannot expect to accept nothing in the short run and then demand some form of payment later.
    My Dad used to think that telling me that "Nobody ever said that Life is fair!" would somehow put my ruffled feathers in order. It didn't, but he had a point just the same.
     
  41. This comes from the LoC "Work for Hire" circular: "The closer an employment relationship comes to regular, salaried employment, the more likely it is that a work created within the scope of that employment would be a work made for hire. However, since there is no precise standard for determining whether or not a work is made for hire under the first part of the definition, consultation with an attorney for legal advice may be advisable."
    Looking at some of the discussion of CCNV v. Reid, it doesn't seem conclusive that you wouldn't be an employee under the conditions considered in the case nor that a "work for hire" relationship didn't exist.
    Add to that that you didn't have in place a separate contract for the images or the work, you've got no written licensing or similar material restricting the use or suggesting that you even asserted it was your work, nor that you were limiting the uses, and you haven't indicated at this point that you've registered the work - which seems to indicate that you didn't see yourself as a professional or independent producer/contractor, at least not until after you were laid off. You could spend a lot of money and get very little for it. You might "win" and still get nothing except for them to stop using the work. Seems like there might be as much or more money in this for your lawyer than for you. That will teach them!
     
  42. .
    Joe,
    "If I were a judge ..." - THAT is all that matters. The judge you get, do they believe in precedent, law and order, or justice? Do they want to hear your story, and does it have suprior merit in the judge's eyes versus the testimony and evidence that will inevitably be presented by the employer's lawyer?
    Unless, of course, you believe the employer will see you as a cheap nuiscance and want to keep your photos in spite of their not wanting to keep you and in spite of not wanting to pay you anymore, and instead change their mind and decide to keep your photos and pay you off anyway and settle out of court.
    Let us know what yout lawyer #1 says, and waht your lawyer #2 says (you are going to be a good shopper and compare opinions, right?), and let us know what happens next.
    Thanks for a provocative thread, Joe and everyone - great research!
    .
     
  43. I have no legal opinion, but my gut feeling tells me that you are contemplating fighting a lost cause which might also become psychologically harmful (if it keeps nagging you). If I were in your place, I'd use the new website as a kind of reference and take pride in the fact that your skills were put to good use. You probably had fun shooting the pictures and post processing them and you might even have learned a little while doing it. It is not as if you weren't paid at all while doing it.
    Being a systems developer I have developed lots of computer code unrelated to a given project. In all cases this code belonged to the firm I was under contract with. The ideas, however, were and are still mine to be put to use elsewhere. I guess this is called experience ;-)
     
  44. I agree with Malte's post. Let us know what happens but I think the only thing you are going to get out of this deal is a legal bill. Learn from your mistakes (no contract or agreement for your photo work on company time) and move on, often the cheapest and best idea.
     
  45. Most lawyers will spend a few minutes say 15 to see if a case is viable; ie one that they might win and grab 1/3 of the award.
    Thus it costs one zero except for gas and your time to get some expert real legal opinions.

    I would imagine that the lawyer would want to know where and when the images were shot; ie at work during normal hours or after work. If its during work hours your employer has payroll records thus saying one was not an employee might fly like a lead balloon; ie thay have stubs with SS money deducted.
    At any rate, I feel extremely uncomfortable with the idea that they have let me go but are going to continue to utilize my artwork for their financial gains.

    In my lay non-lawyer maybe wrong opinion; ie a guess; this This thread has of statements "my artwork; my photos"; but this conflicts with law that says if belongs to your employer.

    It really doesnt matter if you "feel" you own something you did while employed as an employee; its the actual law that matters.

    Thus a proper copyright lawyer would dig into this with vigor.

    Usually its the radically more grey areas that actually see the light of a court; like a temporary non-employee helper, a co author; not an employee with no written excusion.
    Going to court is expensive; many cases settle out of court. Its more of a poker game of posturing; the former employer pays off the nusience possible case to avoid flack in the newspaper; ie bad PR.
    Thus one gets a possible settlement and maybe a blackball too if the employer feels they were in the right.

    Go see a lawyer; in most all cases the copyright belongs to the employer; not the employer; thus they are "their photos; their artwork; NOT yours/mine". Most of the exceptions of ownership are about non-employees in the links I posted.


    Yes Kelly, it was done on company time, and by "volunteer" I mean I offered to do it. But I think you missed the most important point in all of this. EVEN THOUGH I did this on company time (on the clock, etc.), according to work for hire law, an "unwritten" work for hire agreement would only be valid IF what I was doing was "a work prepared by an employee within the scope of his or her employment" (quoted directly from Section 101 of the US Copyright Law), and if you read the point by point breakdown of my duties in my offer letter, NOWHERE in that document does it say anything about photography, media, advertising, promotion, or contribution to anything remotely related to this type of work. So, the only other way for them to claim the rights to my work is through an actual written agreement, and no one ever drew one up or signed one.


    Above you said you did the work on company time; on the clock.
    This sort of points to being an employee; where your employer owns all unless there is some ironclad lawyer type document saying you own XYZ images.

    I think you are getting confused over the "scope" term; and what the "offer letter" said versus what the actual 1976 copyright law says.


    Many of us have as employees know that what we design; shoot; write, make a jingle during work hours thats job related belongs solely to our employer; its even owned if done after hours if its job related in many cases too; thus its abit dangerous to assume that 100 MPG carb one is inventing at home is "my own"; if one is the lead carb designer at GM.
     
  46. The purpose of going to a proper copyright lawyer is also to prevent you from doing something dumb and getting sued too.

    Its been repeated several times about "my images, my artworK"; but you were employed as an employee when the images were shot; and they were done on company time too.

    Thus IF you sold the images to your former employers competitor; one might get socked with a lawsuit since you illegally used THEIR images.

    Thus the copyright lawyer is to prevent you from financial loss due to assuming.
     
  47. Re
    At any rate, I feel extremely uncomfortable with the idea that they have let me go but are going to continue to utilize my artwork for their financial gains. I would very much like to deny any further use of my work by the store.


    What if you just made a spreadsheet that as an employee that allowed one to:

    Inventory the fish radically quicker?

    Keep track of sales; ie what customer buys what?

    What if one just programmed the thermostat to save ones employer money?


    Most successfull managers are constantly looking for ways to cut costs; cut time; reduce waste; cut inventory; it is just like breathing.

    An employer needs an employee to do things to create financial gains; that is what makes a profit to stay afloat; it pays the massive costs of insurance; taxes; labor; rent; lawsuits.
    The gains are the engine to make a profit; that is where the money comes from to pay employees.
    I feel the employer had you to shoot the images to save money; and you just assumed you still owned them.
    They could pay an outside firm to program the thermostat; count fish; shoot the images too.

    Its most common that a company does "stuff" in house; whether its artwork or walmart doing a buggy roundup in the parking lot.
     
  48. Since "scope of employment" is being raised as an issue, I am curious if you have an emplpoyment contract and, if yes, does it specify what the your actual duties to the employer are? Also, are you an expert on statutes and case law are as to what scope of employment means as well as how employer/independent contractor distintions are made and what factors are involved? If so. I wonder how you could conclude that it is not complex? Finally, Its puzzling how you say you are not asking for advice but then you ask others for information about things that can be for no other purpuse but to gain advice.
    I think you have a very interesting issue and I can see various arguments both sides may make. I'm glad you are pursuing the matter but the first responses are very appropriate.
     
  49. Just for interest's sake, what if you volunteered to build the web site for your employer, or create the brochure, again, as a voluntary effort? Then, you get laid off, and they continue using the web site or brochure? Then they find out that you're asking for payment after the fact?
    Personally, if i were the employer, and bearing in mind that I sympathize with your situation from a photographer's perspective, I'd still go ahead and use the content and let you sue me if you choose.
    To volunteer to do something, not ask for payment, not restrict the usage or rights, and give them all the images no-strings attached, it's a great way to advance your career and inject goodwill into your work relationship. But, deciding after being laid off that you wish to be paid or restrict their usage, it just seems like a total afterthought. The company has expended costs to create the web content and brochure, if you restrict their usage, right or wrong, copyright (I'm sure you're entitled to) or not, what's to stop them from countersuing for their own costs?
    As with many photographer's queries here, I think this is going to eventually get filed into the "lessons learned" category.
     
  50. How can an employee thats paid by a employee paycheck by an employer; with federal; state; and Social Security deductions taken out EVER be doing a "voluntary effort" when then are being paid for doing a task during normal work hours?

    Why is this even considered a "complex issue"?

    It seems extremely simple

    One was paid as an employee and thus the employer owns the work.

    Is the gambit that because one one "voluntered" for the task of shooting images while one was being paid as employee for the task that some magical rip in the universe makes ones work not ones employers?

    If one asked several employees who wants to make a new inventory form; and Joe "volunters" to do the task; is the "form" his when he gets laid off?

    Why in hell would an employer hire folks if everything the had an employee do was now the employees?
    See a lawyer
     
  51. The whole "volunteer" thing really makes no sense at all.

    If Archie the manager of McDonalds in Riverdale asks who is free to cleanup the front eating area; and Veronica Lodge an employee "volunteers" what makes the act of Volunteering or saying I will do it magically break an employer to employee legal relationship?

    Its more complex when one has an actual grey area;
    ie can Veronica swing buy store #1234 before going to work at McDonalds tomorrow; and pick us up some extra McDonals Happy meal toys; since we are about to run out of them. Here Veronica might get into a car wreck; the personal car and work insurance might fight over who pays what.

    What if Veronica "volunteers" to shoot the new employee badge photos for 1 week; while Archie is off on vacation with Betty? Does Veronica own these images if she shot them at McDonalds'; while being paid an hourly wage to do the task? What if its not in her job discription?; is this a "get out of jail free card" that voids the 1976 copyright laws?
     
  52. In a lay non-legal peanut gallery way my take is that
    the term "volunteer" Joe is using is
    that he said I will/can do the task as a paid employee;rather than:

    saying he would do it for free;

    ie after hours;

    ie not on the clock;

    ie something performed as a free Volunteer effort like most Legal Handbooks and contacts talk about.
     
  53. I think the bottom line is this:
    Maybe, with the help of a lawyer to scare them, you could *maybe* get them to quit using the pictures or pay you a small amount for their use. The question is whether or not what you would get would be worth the hassle and the lawyer fees.
    However, I think in the end that this sounds like you're acting out of hurt feelings and anger. You have to ask yourself, "Will this action keep future clients away from me?" The worst thing out there when trying to move up is having a bad rep or a difficult rep.
    Just my two cents worth.
     
  54. I have no dog in this fight but I tend to side with the photographer. Early on I had a similar experience. So I feel for your sense of frustration Joe. When you were an employee what was your reason for doing the job? Profit? Self Promotion? If it was for Self Promotion why not stick with that: they did you a favor you didn't like the job and have no interest in it as a career field. But you can show where in a multi point ad campaign your work as a photographer was used.
    If it was me and the bridge was unburned I would swallow my pride and ask for a letter of reference pertaining to the photography used and photo credits.
    Lemons to Lemonade.
     
  55. david_henderson

    david_henderson www.photography001.com

    I think that in the UK at least, if the employer wanted to lay claim to any intellectual property or copyright created during the employment then it is usual (dk whether it is a legal requirement) for this to be dealt with in the contract of employment. Otherwise put ( and I'm not a lawyer and you need one) it would be held to be unfair if any such property you created were to be snaffled without your prior knowledge and consent. "Consent" in this sense may of course be as blunt as "sign this contract or else you won't be working here" but that still represents a choice.
    Whatever, need to take your contract when you visit a lawyer. He may wish to draw a distinction between intellectual property generated in the course of your employment and that generated during your employment., and I can see from your statements here that you are aware that it may be easier for you if the latter applies.
    The other thing that might emerge (ie would emerge if it were me fighting the other corner) is that you granted your ex employer rights willingly and in full knowledge of thei intended use of the images by volunteering simply because there would be no point in your offering -and them accepting- if you then intended to withold permission for the desired usage. Once you have done that it may not be possible for you to rescind your implicit permission, and indeed it would be unfair to do so given that the firm has spent time and money embedding these pictures into their activities which may be critically delayed were you allowed to change your mind.
     
  56. david_henderson

    david_henderson www.photography001.com

  57. This is clearly a case that falls under the work for hire provision of the Copyright Law. The OP had no problem volunteering to do the work while being paid by his employer. The argument that photography was not in his job description is not valid. Most job descriptions are written with very broad language and often contain phrases such as ".. and any other duties assigned by your supervisor." Because the work was performed as an assigned duty, the employer owns the rights to the images. Not to mention the subject of the photos was the employers private property (there was no mention of property release).
    The OP is NOT an independent contractor and had no outside business interest. Because the work was performed under the employ of the store, it does fall under work for hire.
    This does seems like a case of "sour grapes". The OP was fine with the situation until he was no longer employed and then sought copyright for the images. Sort of like, I'll show you......I'll take my toys and go home!" Only to realize that they were never his toys to being with.
    my 2 cents..........
     
  58. Joe, you made these images for them to use without expressing any limit of use to them. Maybe you should have thought about it when you made the images for them.
     
  59. What magical thing makes a photo so special compared to a website, calendar, newspaper , article comic; song or jungle or widget, spreadsheet, to do list, dog pooper scooper schedule created while one is an employee and working in an employers building; being paid to do an employers many tasks?

    If its the take today to ignore copyright laws then lets bring the big depression on big time; cutting jobs.:)

    Businesses have enough worries to stay afloat today during a recession than have employyes come back for works that are legally owned by the employer; created while the employer was paying for the tasks.

    Its not volunteer work; is paid for work.
    maybe many folks here are confused; or on the dole or never figured out what a paycheck is for? :)

    You cashed your pay checks; they have already paid you and they own the image lock stock and barrel.

    If employees can take back stuff thats already been legally paid for the entire business climate will get worse.

    At some point actual laws need to be observed.

    Maybe the something for nothing dogma and handouts has fogged the issues? :)
     
  60. Volunteer work is where one does something for free; ie one volunteers a few hours to help put another say the old guy next door who needs his gutters cleaned out; or its a church group helping some flood victims; or whatever.

    Its not a volunteer work but an employee situation if one "volunteers" to make the coffee one morning; or take out the trash; or shoot images; or deal with pesky salesmen' or makes a spreadsheet while at work.
    If ones employer has one making a new fax cover sheet on company time; during work hours; and one gets a paycheck do you now own it or your employer? :)
     
  61. Joe, I think you should find a way to turn this situation around and get you and the people you used to work for to focus on what a great job you did working on those photos.
    Of course, I agree with what everyone says; get a lawyer. However, people are people. I think it is unlikely that your former employer gets up in the morning, just filled with hate, ready to take over everything. Okay, if you worked for me, then maybe your boss would be that way! But, still, chances are, if your photos have done well, and been an asset to the company, that's probably a lasting contribution that your former employer is glad to have.
    What you're looking for, I think, is some income and, probably more so, a more positive resolution than just, "We ain't got any work for you this week. Sorry, we had to lay someone off, and you're it," or whatever they told you when they let you go. From a management perspective, when was the last time that cutting down on employees was a really good, long-term idea? Almost never. We live in a world of all these major cutbacks for decades, but still; Ford Motor company and Carnegie Steel didn't rise up from the dregs of unknown humanity to become major businesses just by walking around and firing people. Successful businesses may want to be efficient, but in order to get to the top of the pyramid, they have to expand.
    Let's say you were working for a really small business. I don't know, but I'd bet the aquarium store, if it's a lot like small businesses like that in my area, probably have less than 20 employees. People don't go into the Pet Store business to take stuff from others. People go into the pet store business because women like pets and children like pets, and it can be a nice way of bringing in a small but steady income while working with animals people love.
    What I'm getting at is, while you should probably get a lawyer, if the first path to getting this positively resolved is going to be aggressive quarreling, things aren't going to end up constructive. The best resolution here would be that you could find a way to turn this situation around and go from laid off pet store employee to part-time ad business owner. Commercial photographer for web ads; something, anything other than being the next guy to bicker over a copyright issue is going to help you get your act together and get productive.
    You're laid off. You did some good stuff at your last place of employment. Use that. Pull yourself up by your bootstraps and drive on. Fire up that camera and take some more ad pictures. Do you have a flash? Did you just not demonstrate that you could take good quality photos of highly reflective subjects, like fish in water? That's not as easy as it sounds, is it? Did you do that?
    Focus on what you can do. Everybody is surrounded by losers and idiots everywhere. You're a man; if you're going to be a leader, you've got to get people around you focused on the way to move forward. Don't waste too much time reacting to the dumb or selfish things those other people do. It's not like you had the Zapruder film. They were aquarium photos. I know they're your aquarium photos, and that's what makes them so important; but, get more. Make more.
    If the only thing you've got to hang onto right now are some photos that you took that someone else has; that's not going to fix the employment problem. I know all this sounds harsh; but, I've been broke and failed a bunch of times; I've been there I don't know how often. Seems like every day sometimes.
    The fact that you did something other people could not do for themselves shows that you have the capability of bringing services to the market. That is positive. That can get you some more employment. Photographic equipment, that's tools. Men use tools. Clean your rig; reload; put on your work boots and use your tools. You will make something come along.
    Man, I hope I wasn't too harsh; but that's what it is. Good luck to you. Merry Christmas. Sorry about the layoff. J.
     
  62. Just to turn this situation completely on its head... What if the employer didn't use your images at all, didn't create the brochure or web site or anything. And then, what if you used the images you "volunteered" to take, outside of any purposes related to your employer, and the former employer sued you for showing images of their property, without compensating them?
    Another thing to ask your lawyer about, not sure how relevent it is, is "fiduciary duty". I really don't know how it would fit into this scenario, but as an employee, you have some unwritten obligations to act in the best interests of your employer during your employ. Another potential interesting spin on this.
     
  63. You've got a camera? Get some white foamcore or cardboard and some big sheets of paper and some cloth. You can make a cube and light it up with two desk lamps. That's a still life setup for product photography. You can add in some black cloth on the bottom. If you can find a way in to factor in a big sheet of glass beneath the products, with the glass hovering a few inches over some dark cloth; that will be as good as any New York City Pro Commercial Photographer product photo still life setup. You can do it. Focus on stuff like that. You're more likely to win some small income with an I'll-photo-your-online-auction-stuff part time business than you will if you pick a fight with no resources up against a former employer who can't keep staff on over at the pet store anyway.
    Do the product photos. You can build, I bet, five good examples of ad photos over the next week using what you learned with the aquarium shots. That would be five more ad photos than you have now. That would be five more photos that can get you to get some other guy to hire you to build his ad. Look around; ads everywhere! Somebody had to take those pictures. If you took some good ones like it in the past, you can make some more.
    Good luck. J.
     
  64. It is hard to grasp, but when the Copyright laws were changed some years back, there was a complete reversal of the old rule that if someone paid a photographer to shoot pictures, the pictures belonged to the person who paid, unless agreed otherwise. THAT IS NO LONGER TRUE. Except in very narrow circustances, which do not seem to apply here, Joe is correct that he has a very good case. Probably a slam dunk case. I learned about this after I was out of the PR business for a few years, got back into it, and hired a photographer. Things had changed in the interiml.
    "See a lawyer" is, of course, a good rule. But please, don't pontificate to Joe when you know nothing more than the common wisdom. As Mark Twain, I think, said, "common wisdom is not wise, only common."
     
  65. So David why is it a "slam dunk case" when an employee that is a manager of an aquarium store shoots some photos for his employer on their time ; in their building; and gets a normal paycheck?

    It is actually a slam dunk case for the employer; he was an employee; who owns the images.
    They also own designs; artwork; spreadsheets; software; fax cover sheets; all the work an employee is paid to do.

    Saying its a slam dunk case is basically blackmail; demanding ownership of anothers images and demanding money for it. Blackmail has no end to it. One could ask for payment for creating a new fax cover sheet; demand a million bucks.

    He wasnt hired as a photographer; he was already employed there.

    If the employer knuckles under and pays for images they already own the blackmail may never stop; the blackmail/cancer could lead to demands over ideas one created; fax forms; lines of code; a companys websites created on company time while working in the employers building.
    Many times a company will pay off troublemakers; or small fees on item they already own to just avoid a lawsuit; but then one might be earmarked forever as somebody to never hire again; since the basically got blackmailed. They do the same thing too with roaches; tehy pay to get rid of them.:)

    There are massive holes in this thread as to details; there is NO mention that Joe got paid specifically as a photographer even for the task; ie a separate check for the images; like an outside pro's bill being paid.
    The whole thing is more like it was just part of the normal part of being a manager; ie like making a new form, new faxpage; new inventory list; new logo; ie he shot some images on company time for his EMPLOYER; and got his regular check.

    The thrust of this thread seems to be to demand money for what ones past employer already owns; and sue them if necessary; and do not worry about burning ones bridges; or ones reputation.
     
  66. Employers have more important things to do than handle disgrunted former employees who want money for things they have already been paid for. Maybe some poor SOB will read this thread at Microsoft and demand cash for a dll he wrote 1 year ago; or 10 years ago; since he "volunteered" to do the task while an employee at the dll squad. Lawsuits and payoffs/blackmail just add costs to running a business; thus its often cheaper to ax the expensive troublesome jobs or divisions and move them overseas.
     
  67. Some of the posters here have confused a photograph and artwork with inventions. Governments all over the world classify photographs and artwork very differently compared to inventions such as a dog pooper scooper, Kelly. In my opinion, Joe still owns copyright to these images. He was not commissioned by the employer, so they dont own it. There was no written agreement as to usage. His payment for daily work is a completely different issue as to who owns copyright of the images.
    Hypothetical: If Joe took the best fish photo the world has ever seen and his employers sold it to Global Fish for $1,000,000.00, exactly the same thing has happened as is happening now. The employer still intends to make money from someone elses creativity regardless of whether its $1K or $10.
    I think at very least, you should be paid the going rate for Post Production that you completed out of work hours.
    Peter
     
  68. Because employment is not a simply defined, case law and the intent of the legislators in drafting the legislation sometimes is used to determine if the particulars of a case fit the established law. Whether the "product" is the type of thing covered by a patent or by a copyright, there are laws defining how ownership is determined.
    One can do things the easy way, and have appropriate contracts and other documentation in place before the work commences or you can ignore good practices and attempt to back into a favorable situation after the work and damage is done. Neither the OP nor the employer did what they could have to clarify the employment/copyright ownership issues.
    Unfortunately for the OP, getting paid for daily work, including being paid for the days when he was taking pictures, has a great deal to to do with ownership of the copyright. Lots of companies/employers make a great deal of money off the efforts of the employees. The OP failed to protect his interests before the work started. Even while he was employed, he failed to establish a clear ownership - whether his or the employer's. He is stuck now with trying to twist the law around to show he has rights to the material and it seems that at best, his claim is tenuous under the laws.
    http://www.copyright.gov/circs/circ9.html
    The circular goes into detail on what may constitute the kind of employment that determines if a "work for hire" situation was in place. One can't wish for it to be otherwise, one can't simply pull out the portions that make one feel good and ignore the rest of it.
     
  69. Mathew, who is telling you that special fiduciary duties apply to employees in the same way that they do to to officers, board members and the like? Let's pretend there is such a duty to mere employees...
    The issue is whether the images were taken in the course of employment because there is no written contract. Absent a written contract, one either creates an image in the scope of employment which causes the employer to own the images or as an independent contrator which causes the photographer to own the images. Why would anyone bother to consider whether someone acted in a fiduciary capacity when the determination of who owns the image is already decided? It is as relevent to the determination of ownership as asking if the shooter wore a blue shirt or a red shirt. One either shoots an image as an employee or they do not. It makes no difference whether they acted as a good employee or disloyal employee. It does not matter if they wore a blue shirt or a red shirt. They were either acting as an employee at the time or they were not.
     
  70. Peter read this :

    Although the general rule is that the person who creates a work is the author of that work, there is an exception to that principle: the copyright law defines a category of works called works made for hire. If a work is made for hire,the employer, and not the employee, is considered the author. The employer may be a firm, an organization, or an individual.

    This law is over 30 years old now; its abit common knowledge; its written in plain English.
    YOUR opinion is that Joe own the work; the actual copyright law of 1976 is opposite of your viewpoint; and is the law of the land. Its taught in UCLA extension courses in photography; the arts school in Pasadena; Brooks institute in Santa Barbara; even High school classes about photogrpahy and art.


    An actual Judge will point to actual laws in force. It really doesnt matter if the artist of photographer doesnt like courses; laws; education. What matters are the actual laws; as plain as that red 8 sided sign is a stop sign.


    That is why one should see a lawyer. If one is an employee and later on after leaving a business he/she want to claim ownership of his employers images; somehow the 1996 laws would have to be erased by time travel.
    The sad thing is folks assume stuff; and want the laws to magically be erased to fit their agenda.
    The 1976 law has been well known. Thus a former employee shooting Xmas images of kids cannot claim they own their old employers images as a form of blackmail. Also employee that have been discharged cannot grab for the "copyright" of a fax coversheet they volunteered to make 2 years ago. Employers really do no need entitlement seeking folks asking for things they already legally own; its absurd.
     
  71. Hi Kelly
    thank you for pointing me to the US copyright laws. Just a quick read looks to me like Joe hasnt got much of a case . Copyright laws were also revamped here (Australia) in the past ten years or so. The lesson here is to specify who has what in writing. The only grey area I can see in this case is that Joe was employed as a pet store salesman not as a photographer, however the copyright law clearly states that the employer will be the copyright owner of anything produced whilst in their employ. I know that photographers working in and for graphic design studios, newspapers and magazines automatically forfeit copyright to their employers / contractors unless a business agreement has been negotiated and signed beforehand. The terms and conditions stated in these agreements can be quite complex ranging from usage to royalties and all in between.
    Peter
     
  72. Hi Peter;

    many of us here seem to mention to get a proper lawyer on many of these type threads;
    where we as lay folks are basically a peanut gallery with opinions.

    But then again too many of us want to save money; or do it ourselves; or learn more; or walk on thin ice or; or play with dynamite.:) all of us have made mistakes by assuming; its human.

    I fear that by NOT seeing a proper copyright lawyer somebody such as a former employee could get sued by ASSUMING / FEELING they own the images; ie selling them to a competitor; using them on ones own website as advertising and get into real pickle; ie legal woes.
     
  73. Legal issues aside, I guess my confusion regarding all this is that you say you "volunteered your services and equipment", but that you feel uncomfortable about them continuing to use the images for financial gain after you left - even if it had been under amicable circumstances...
    WTF? Did you happen to mention that when you "volunteered"? Of course not, you did the work - on your employers time and while being paid - presumably having more fun than doing your normal duties, and made no such stipulations about them not using the images after you left. If you HAD said that they would have simply had someone else do the work.
    My advice would be to move on - take pride in the fact that your images are being used, if you'd like to see a credit line you could ask them for one. This is not a battle worth fighting in my opinion (not a legal opinion, a human one). You aren't fighting some huge entity that will settle for bundles of cash, if you stop them using their website for commerce what have you really achieved? There are other employees livelihoods to consider. And from a peace of mind point of view, who needs this crap in their lives - it will fester, create negativity and really... for what?
     
  74. Sorry to say, but just one more vote saying I think you have no case. The employer owns what he employeed you to do.
     
  75. My take on it is that your former employer has a non exclusive license & that you still own the photos.
     

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