Online Portfolio- Forced Removal

[natalie_g1]

I am a staff photographer at a design studio. I regularly do fashion/product shoots for our client's

catalogs and websites. I created my own art website that included the commercial photographs I've taken

as well. I put a disclaimer under all the commercial photographs stating that the photographs taken were

for the company I work for. However, my boss has made me take them down when he saw it on my site,

stating that I never asked him for the usage and also that I put photographs online that I didn't even take.

The latter part is just makes me outraged because I am a young photographer and want only my talents to

be displayed on my site. I would never take credit for someone else's images. What are my legal rights on

the issue of the portfolio and the accusation? If I'm working as a staff photographer for someone do I

need a written agreement that the images I take, I can place in my portfolio?

 

Thanks for your help!

[michaelchristensen]

Yes, you should remove them. Unless you agreed to, or had a release to display them in such a manner, you don't own them nor the copyright. Can't give you legal advice, but when your product of your efforts belongs to someone else you should have an agreement or release of some kind to use/benefit from the use of that product.

 

Seems like the company you work for may be exposed to potential liabilty by the display of photographs you took while under their employ. Merely giving credit to the company is not enough. You would probably need something in writing permitting you to do so. It may be even more complicated in that a client may assert their rights against your company for things related to trademarks and other issues. Did you read the contract between your company and its' client? Seems like your boss is merely trying to save the company from a potential problem.

 

Had you approached the boss and client before you did this it may have turned out different for you, but as such, you now have to deal with the boss' reaction who I'm sure is trying to mitigate the problem he perceives with current and future clients.

 

You sound like a talented photographer. No doubt you will be smarter the next time and get a client/company release to use some photos you've worked on and/or taken in your portfolio or web display.

 

When you work for anyone, a company, corporation or govenment entity, your work is not merely your own and your personal use of any product derived while under the employ of another entity or person requires some sort of an agreement. This is not legal advice, merely my opinion. Perhaps there are others who have a different point of view or have experienced a similar problem.

[greg jansen]

Take them off. Of course it all depends on what your contract with the employer states, but in MOST cases, if you are hired by someone or some company to take images for them, then THEY own the images and all rights to them. It is up to the owner of the images to determine when, where, and how they are used.

 

When my assistants take images at a shoot, my company owns the images. If they want to use some for their portfolio or website, permission is granted on a per image basis, after my review.

 

Most likely your boss was upset because you did not ask. Had you showed your boss the images you wanted to post, and how you were going to use them, he may have said yes. I don't blame him for having you take them down. Lesson learned.

 

Similarly, if I do a shoot for a company and they will own the images afterwards, they can do whatever they want with them. If they want to crop them, alter them, change the colors, whatever, that's fine with me. They paid for them and they own them. I have no say.

[ellis_vener_photography]

"What are my legal rights on the issue of the portfolio and the accusation? "

 

Your legal "right ", if you want to put it that way, is to be fired if the terms of your contract say that all work produced is the property of your employer and you have broken those terms of employment.

 

 

Analyse the situation this way: Client ABC sees work that they know was produced by the MNO studio , but they somehow find out see it show up in the portfolio of XYZ photography. so they go back to studio MNO and say "Hey, what is going on here?" So now put yourself in the shoes of the owner(s) of studio MNO. What your reaction be to that question? How would you deal with this problem? Now look down the road from your vantage point. the professional advertising and design community is smaller than you think. You've moved pat studio MNO ,and maybe now you have your own shop or are looking to be hired at another studio. When potential clients or employers ask for references and check back with your old employer, what do you think they might have to say about you? What do you think client ABC will say about you? Bad word of mouth can kill even the most established of commercial art careers.

 

 

"If I'm working as a staff photographer for someone do I need a written agreement that the images I take, I can place in my portfolio? "

 

Not a bad idea. it avoids disputes and hard feelings later.

 

If you want to produce your own portfolio of work you'll have to do it on your own time. Some studio and business owners may allow you to ue their equipment and space to shoot with, some may not.

[argv]

Everything stated here is correct with one exception: if you're an employee of the government and you take pictures as part of your official duties, your photos are automatically in the public domain.

 

The laws on copyright are very clear in this and all other matters and can be found on the governments copyright site's FAQ:

 

http://www.copyright.gov/help/faq/

 

There, you will see "who is the author?" And that describes conditions such as "work made for hire." And when you look up the question "what is a work made for hire?" You get to this link:

 

http://www.copyright.gov/help/faq/faq-definitions.html#made_for_hire

 

There, it describes the employer/employee relationship. There's no ambiguity here: you do not own the copyright to your work, therefore you do not have the right to put those photos on your website.

 

dan

[daverhaas]

Natalie -

 

Put this under the live and learn category. Pull the photos, apologize profusely, and ask if they will help you to create / build your portfolio.

 

One thing that may be misstated by Ellis - When a future employer in the US calls a past employer all they are legally permitted to say is "Talk to HR" and all HR is permitted to say is that person X worked or did not work here and here are the dates of employment and salary. Period.

 

Dave

[argv]

David Haas said: "When a future employer in the US calls a past employer all they are legally permitted to say is ... that person X worked or did not work here ..."

 

The word "permitted" is incorrect and should be replaced by the word "obliged." So, the sentence should read:

 

"When a future employer in the US calls a past employer all they [the past employer] are legally *obliged* to say is that person X worked or did not work here."

 

If the past employer chooses to volunteer anything else -- anything AT ALL, positive or negative -- then they are certainly *permitted* to do so. However, if what is stated turns out to cause the new employer to decide not to hire the prospective employee, then that person could have a legal claim against the prior employer IF AND ONLY IF the statement that was made can be shown to have been libelous.

 

Now, because it is very difficult to assess whether someone's opinion is actual "libel", it is something that would have to involve a judge. And if a judge is involved, then a lawsuit has taken place. and if a lawsuit has taken place, then the prior employer is paying a big legal bill to defend itself against statements that, frankly, would have been best kept unsaid.

 

it is for this reason that most employers choose not to say anything about prior employees. but it's not because they are not permitted to.

[daverhaas]

Dan -

 

You are correct. I had it brainwashed into me by my last 3 real employers... They used the word "permitted" since if anyone was found to have done anything beyond confirm employment and salary (if asked), their career would have been very limited.

 

Dave

[daverhaas]

Natalie -

 

The one question that hasn't been answered - perhaps there's no real need to but what the heck...

 

 

You've already been caught with your hand in the cookie jar (so to speak) and now your boss is making it worse by saying that some of the images weren't shot by you... Sorry to say that unless you have a way to prove that you actually shot them, there's not a lot that you can do about it and you didn't give us any information on how you would be able to prove that you shot them vs. another staff photographer.

 

I've had shots (many years ago) that I swore I took, only to have another photographer on staff swear up and down that they took them. It ended up being a "He said, He said" type thing and ultimately ruined a friendship and neither of us gained from it.

 

Now the difficult thing for you is that if your firm is like 97% of America, this issue will certainly come up again at review (performance) time. Keep documentation of all communication with your manager, keep documentation of the dates you first posted the photos and the dates when ALL of the photos in question were removed from your site.

 

Without knowing the workflow of images at the company, it's pretty difficult to respond as to how to prove that the photos in question were indeed taken by you. But if it were me, and I was paranoid, I'd start logging (very simple spreadsheet or notebook) all photos that I took... Date, time, subject, filename, etc...

 

Dave

[William Michael]

If you want legal advice specific to your case and your local and federal laws, pay an expert for that.

 

 

If you want a free non legal opinion, read on:

 

 

 

`I am a staff photographer at a design studio.`

 

 

This sentence kinda sums it all up.

 

 

In MOST situations in MOST countries, what you have described you have done is both wrong and impolite, and possibly illegal or at least in breach of your employment contract, thus making it voidable on the employers behalf (i.e. the employer can dismiss you, on the spot, for the breach).

 

 

It is irrelevant who actually took the images you posted on your site.

 

 

1. remove the images, post haste

 

 

2. apologize to the boss for your ignorance

 

 

3. apologize for your actions beacuse of that ignorance

 

 

4. be thankful you still have a job.

 

 

 

 

WW

[natalie_g1]

Alright, thanks guys. After my boss brought the issue up, I did immediately remove the

images and did apologize. I definitely appreciate all your responses in the matter!

[john_h.1]

if you're an employee of the government and you take pictures as part of your official duties, your photos are automatically in the public domain."

 

This does not necessrily mean that the government employed or "official" photographer can be use iamges they shoot for the governemnt for any purpose. Atates have anti-corruption statutes that forbid profiting because of one's governmental actvities. If one shoots images as a government official, the images are not avaiable for public viewing and the images are then used for profit by the photographer, the photographer can expect a to be charged with violating such a statute. There are other restrictions too such as government secrets. Obviosly ther is no 'public domain' defense to someone posting their CIA photography sample on their photography business website.

 

We saw a interesting debate a while back with a photographer being charged with felony violation of such a anti-corruption statute when he sold images he shot to a newspaper that were unavailable to the public. The debate was not about whether the law involved would apply to that situation in general but, whether that particular photographer was really acting in a official government capacity. If he was an actual employee, he would be toast. I don't think we have heard how that particular case worked out.

 

Since Natalie was not acting as I government employee, this does not effect her. Natalie does have much to learn about the business of photography though. AN informative book and the government copyright website should help.

[john_h.1]

"then that person could have a legal claim against the prior employer IF AND ONLY IF the statement that was made can be shown to have been libelous."

 

Some states allow a qualified (meaning good faith) privilege exempting them from defamation claims to promote more open discourse bewtween past and prospective employers about potential employees. Many states are modifying the privilege by case law or statutue. What does this have to do with photography? Nothing unless you are involved in such an issue with repect to a photography business. Check with local counsel for these things.

[alexie_jenkins]

"I had it brainwashed into me by my last 3 real employers... They used the word "permitted" since if anyone was found to have done anything beyond confirm employment and salary (if asked), their career would have been very limited."

 

This comment made me laugh because I can relate. When I left a company 3 jobs ago, the woman in HR informed me that no one at the company was allowed to give me a reference. They can only confirm that I worked there. Even though I knew this, I played dumb and said to her "But you ask for references." She had no response. :) This system seems to work for bad employees and against good employees.

[mahonri_moriancumer]

Something tells me you didn't take many business classes in school. Photo classes are nice but they don't make you any money. A great photographer with little business sense makes much less than a hack who knows how to run their business any day of the week.