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

<p>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.<br>

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.<br>

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:</p>

 

<ol>

<li>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).</li>

<li>I was NEVER given any sort of document or agreement to sign which would transfer the rights to the work to my employers.</li>

</ol>

<p><br /> 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! <br /> <br /> THANKS!</p>

<p>Listen to your lawyer......your situation is quite complex legally......respects, Bob</p>

<p>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.</p>

<p>Listen to Bob, and take advice from your lawyer only.<br>

Dave<br>

<p>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/<strong>business-photography-forum</strong> /00QFL9</p>

<p>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.</p>

<p>You may have been better off to let the ad campaign go ahead before telling the world.<br>

Oh well...............</p>

<p>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.<br />Two things you should think about:<br />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..."<br />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.<br />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.<br />I believe the person who said your case is "complex". If it were easy, then you probably wouldn't need a lawyer. Good luck!</p>

<p>POP TEST !<br>

If you invented a new aquarium pump<br>

and also invented a new chainsaw sharpener<br>

and a new fantastic fishing lure<br>

and a new popcorn popper<br>

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?</p>

<p><em>I respectfully disagree in the thought that the issue is all that "complex"</em><br>

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.<br>

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.<br>

John</p>

<p>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.</p>

<p>Another POP TEST!<br>

what if it was not a photo;<br>

but the layout;<br>

sketches;<br>

the new type font you created;<br>

or if it was a jingle?<br>

what if its html<br>

what if its a website that one created for ones employer?<br>

What if it was just a better way to sort mail?<br>

What if its just an idea on the way the building front should be repainted; or parking lots restriped?</p>

<p>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.</p>

<p>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.</p>

<p>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.</p>

<p>OK; dumb question; was the work done on company time?<br>

IF one is working a normal 8 to 5 job and being paid where does the term "volunteer" come into play?<br>

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.</p>

<p>.</p>

<p>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.</p>

<p>.</p>

<h2><a href="http://www.copyright.gov/circs/circ9.html">Works Made for Hire under the 1976 Copyright Act</a></h2>

<p>"I'm not sure why it matters what others have to say."<br />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. :)<br />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.</p>

<p>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.</p>

<p>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.<br>

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.</p>

<p>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. </p>

<p>Kelly... I love your Pop Quizzes!</p>

<p>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."</p>

<p><a href="http://www.4lawschool.com/property/reid.html">Copyright Law- work for hire </a></p>

<p>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.</p>