Who owns copyright?

[marnedog]

I have worked for a company for over 7 years for three different owners. I had

to provide all my own equipment in order to do my jod. The owners have alway

owned their own equipment, but as I said I have always used my own. (Nikon D1x,

Nikon D70, Nikon D200, and Nikon D300. All files have my name and copyright

enbedded as I shot all images. (feature of Nikon). There was never an agreement

as to who owned the right to the images (signed or oral). I have always done

whatever i want to do with the images as far as advertising (of course with the

permission of the customer). The Business has now closed and I what to know if

I have the right to display any of the photo's I shot for the last 7 years

without the previsous ownerss permission. As I said earlier all was shot with

my equipment, all are enbedded with my copyright information, and before

display I asked for permission from all customers. Thanks in advance!

[john_h.1]

CHeck the copyright.gov site for the circular on this issue for some reliable information. Adding to the commebntary to the employer/independent contractor test, there is a continuum of factors that tend to show control or lack of control over the the performing party. One factor is whether equipment was issued to the party but, it is only one of many factors considered in the test.

 

We don't have enough information to give you a reliable answer as to whether you were an employee or not. Many also get fooled by the fact that they were issued a W-4 or had taxes withheld ect. That stuff is a factor too but not independently dispositive. If it were we could reduce the caseload of the unemployment and workers compensation entities.

 

You also had multiple 'bosses'. While they may have acted similarly, they could be each treated differently depending on thiose factors.

 

Its good you have the customer'smission, hopefully in the form of a release but it is a different issue.

[leicaglow]

You'd want to talk to a legal adviser about this, but I believe a copyright can be claimed by anyone. You just have to be prepared to defend your position if challenged. Also, there is the issue of who first claimed the copyright. If that is you, and there was no formal agreement, then you may be scott free. BUT, I would at least do the things needed to actually register the copyright, and not just stamp copyright on the image. The way many people do it is to submit a sort of contact sheet with the images on it, and then copyright the entire sheet or book. That way you don't pay the individual copyright fee for each image. Bud do some homework at the Copyright office or with an attorney before you go too far down the road.

 

Oh, and I also agree that being paid to shoot the photos does not in any way indicate who owns the copyright, especially if there is no agreement. I was involved in a case where several people started a software company based on work they had done for a former low-life employer. He did everything by the seat of his pants, including talking about who owned the work. Because he didn't have anything in writing, the federal judge said he did not own the work (he could still retain ownership of the code he had in his possession, but couldn't prevent us from using it). A good thing since he couldn't seem to make paydays<g>. When starting the company, we had to factor in the $50-150K in legal fees to defend our ownership though. That's the other issue... how much are you willing to spend if you get sued.

[fullmetalphotograper]

If you were a full time or part time employee of this company shooting during your work

hours they own the copyright. If you were an independent contractor who was hired specific

assignments you own the copyright unless you signed the rights away.

[Spearhead]

<i>You'd want to talk to a legal adviser about this, but I believe a copyright can be claimed by anyone.</i><p>That's nonsense. A copyright is owned by whoever owns the copyright under the law. "Claim" has nothing to do with it.<p>

 

There are laws about copyright ownership by employees. If you were in fact employed by the company, you don't own the copyright to any images if they were created within the scope of the job. The employer does, and if they are out of business, whoever owns the assets owns it. There are tests for whether or not your relationship constitutes being an employee, but none of it has to do with who owns the equipment you use or what copyright notice may be embedded in the images.<p>You can get excellent information from the US copyright office at <a href="http://www.copyright.gov/circs/circ9.html">this location.</a> If you think you have a valid claim to the copyright under the terms there, hire a lawyer.

[brian.]

Ralph is right and Jeff is also right. If you were an employee, not an independent

contractor who pays his/her own withholding taxes, then most likely the work was done as

"work for hire". You wouldn't own the copyright. There might be a "fair use" thing where

you could at least show the images in your portfolio as examples of your work, but not be

able to re-sell the images.

[leicaglow]

Jeff, what is nonsense? When I say anyone can claim copyright, that means whoever files the copyright. It all comes down to who claims (files) the copyright, and how it is challenged and defended.

 

Dan writes: "All files have my name and copyright enbedded as I shot all images... There was never an agreement as to who owned the right to the images (signed or oral)... The Business has now closed..."

 

If he never had an agreement, and his files have his name and copyright embedded, and his employer never filed a copyright, I don't think W4s or 1099s will make any difference, given the fact the business no longer exist as a legal entity.

[Spearhead]

Copyrights aren't filed. You can file to register your copyright, but copyright is assigned at the time of creation, not the time of filing. It's really simple, and there's tons of documentation on this. If he was an employee, the employer owned the copyright at the time of creation, per the copyright laws. It doesn't matter if a copyright notice is embedded if it's not valid. If the business is closed, it depends on what the terms are for the closing and if there is assignment of assets.

 

The idea that copyright is based on a claim is what is nonsense. Copyright is assigned at creation.

[sobeystudio]

Dan-

Why don't you ask for permission and see what happens? If you have been using the work

for promotion in the past, why not use it now? Are they checking up on you and your

business? Of course if it comes to selling images, you may be in a sticky situation, but

generally most businesses don't care about what YOU are doing, unless it makes them look

bad- not the case here, wherein the business is closed! By the way, do you really want to

promote yourself with photography from a business that is no longer operating?

[craig_gillette]

If you haven't spent some time, and it may take some study time, on the Library of Congress copyright site, you aren't doing what you need to do as a photographer. Pro or amateur. Besides the basic law and procedures, there are FAQs and a variety of "publications" which go into plenty of detail to give more than a good start on understanding most of these questions that come up on the forums.

 

Jeff's right. The copyright was owned by the employer or the photographer - that depended on the circumstances at the time the pictures were taken. We don't know those circumstances well enough to do more than guess. Many photographers and employers recognize that there is a value to copyright and are sure that the business contracts are clear on that. If you don't have clear contracts, the ownership defaults to the law. Much as if you die without a will, probate laws govern disposition of an estate. That copyright was an asset, although not as obvious or tangible as a desktop computer or stapler. When the business was dissolved, those assets were disposed of.

 

Until one "knows" who owned the copyright, then how any disposition was made, if any, there's no way to give an answer. From a purely practical side, the owner may not know or care and it may not be all that easy to track all the legal issues.

 

It's like "fixing" an old family picture. We know someone else "owns" the copyright, unless clearly in public domain. The legal side is clear, the practical side is that the restoration can be done without much concern about legal fallout. Since it seems like the "owners" are around to contact, that might be the best first step. It might be very easy for them to clearly assign the copyrights to the photographer, especially if there is no follow up business interest in them on their part.

 

Of course, if the OP actually held copyright from the beginning, then it's still his.

[john_h.1]

"There are tests for whether or not your relationship constitutes being an employee, but none of it has to do with who owns the equipment you use"

 

I agree with Jeff's comments except this one. It is correct to say that the ownership of equipment used is not, by itself, dispositive of who owns a copyright. It is, however, one of the many factors considered in the "tests" of whether one is an employee or an IC. This has been well settled law for many many years in just about every juridiction.

 

While the outcome of the balancing test showing control or lack thereof over the actor wouldn't ordinarily turn on this one factor alone, it could be if all the other factors considered turned out to be roughly even and almost too close to call otherwise.

 

As to one comment I made about potential multiple ownership of images(if they are indeed owned by any of the one time studio owners), this is assuming the copyrights to pre-existing images weren't sold to the new business owners.

[john_h.1]

"I don't think W4s or 1099s will make any difference, given the fact the business no longer exist as a legal entity."

 

This is also one of the factors that can be considered as well. Like the equipment ownership factor, it is only one of many that are part of the mix. In this instance it would not matter if the business exists now because the issue is whether the person was an employee or an IC when they shot the images, not now.

 

If anyone is interested, I can get you a list of factors that are frequently considered in these matters.

[kevin_chappell]

Hey, I'm new here but I've been doing extensive research on this as I've got some issues with an ex-business partner/girlfriend (very bad idea to combine the two!). Having just finished reading pages at US Copyright office website, 'Work for Hire' must be in the form of a written contract, therefore saving my tail in my case and helpful to Dan. Copyright specific Legal counsel is highly recommended, of course just to be sure.