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

[sonny_beverage]

<p>Thanks for the link to the Copyright Law, Kelly! As I said, the work for hire part is fairly straightforward....</p>

[kelly_flanigan1]

<p><a href="http://books.google.com/books?id=EkdDnFdoDMkC&pg=PA15&lpg=PA15&dq=Supreme+Court+in+CCNV+v.+Reid&source=web&ots=ATEB5_GI7g&sig=oQKyVg4CF7cJQEUMX9cnVc2Bqn4&hl=en&sa=X&oi=book_result&resnum=8&ct=result"></a></p>

 

<h2 ><a href="http://books.google.com/books?id=EkdDnFdoDMkC&pg=PA15&lpg=PA15&dq=Supreme+Court+in+CCNV+v.+Reid&source=web&ots=ATEB5_GI7g&sig=oQKyVg4CF7cJQEUMX9cnVc2Bqn4&hl=en&sa=X&oi=book_result&resnum=8&ct=result">Art Law Handbook</a></h2>

<a href="http://books.google.com/books?id=EkdDnFdoDMkC&pg=PA15&lpg=PA15&dq=Supreme+Court+in+CCNV+v.+Reid&source=web&ots=ATEB5_GI7g&sig=oQKyVg4CF7cJQEUMX9cnVc2Bqn4&hl=en&sa=X&oi=book_result&resnum=8&ct=result"> By Roy S Kaufman </a>

[daverhaas]

<p>Joe -</p>

<p>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.<br>

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.<br>

Dave</p>

 

[kelly_flanigan1]

<p>Study up on CCNV versus REID and see a lawyer.</p>

[BrianS1664879711]

<p>"And it really has nothing to do with being bitter, so folks, please stop bring that up."<br />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.<br />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.<br />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.</p>

[sonny_beverage]

<p>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).</p>

[sonny_beverage]

<p>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? =)</p>

[brad_smith8]

<p>"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."</p>

[manuel barrera houston,]

<p>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.</p>

[JDMvW]

<p>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."<br>

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 <em><strong>only</strong> </em> if there is a settlement in your favor) then I think you will have your answer as to whether you really have a case.</p>

[akajohndoe]

<p>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.<br>

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?</p>

[bill_dewberry]

<p>Me thinks your former employer is better off, in a couple of ways. As to your future employer, OY Ve.</p>

[Mark Keefer]

<p>This is just my personal opinion and may not be what you are hoping to here, even though I do sympathize.<br>

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.<br>

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.<br>

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.<br>

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.<br>

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.<br>

I wish you the best of luck. Regards, Mark</p>

[Jerry_]

<p>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.</p>

<p>Once you have done that, you will get better advice from your lawyer.</p>

<p>(Had the fish store owner provided you with a camera, lenses, etc., then the area of 'employer copyright' would be more clear.)</p>

<p> </p>

[kelly_flanigan1]

<p>Joe <em>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).</em> <br /> <br /> 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. <br>

<strong><a href="http://www.ivanhoffman.com/online.html">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.</a> <br /> <br /> Thus I wonder about your statement in a non-lawyerly lay way; ie <em></em> </strong> <em> 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).</em> <br /> <br /> 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.</p>

[kelly_flanigan1]

<p>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?</p>

[kelly_flanigan1]

<p>See if your lawyer; ask him about :<br>

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:<br>

<i>Section 101 of the copyright law defines a "work for hire" as : 1 a work prepared by an employee within the <b>scope</B> of his or her employment</i> 2 <BR><BR></p>

[kelly_flanigan1]

<p>This is an interesting link:<br /> <br /> <a href="http://www.copylaw.com/new_articles/wfh.html">B. Works Created by Traditional Employees A work created by an "employee" within the scope of his or her employment is automatically considered a work for hire. These works do not have to fall into one of the nine narrow statutory categories of works for hire and no written agreement is required. </a></p>

[albert_richardson1]

<p>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.<br>

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.<br>

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.</p>

[craig_gillette]

<p>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."</p>

<p>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.</p>

<p>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!</p>

[peterblaise]

<p>.</p>

<p>Joe,</p>

<p>"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? </p>

<p>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.</p>

<p>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.</p>

<p>Thanks for a provocative thread, Joe and everyone - great research!</p>

<p>.</p>

[dmz17]

<p>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.</p>

<p>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 <em>experience</em> ;-)</p>

[tholte]

<p>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. </p>

[kelly_flanigan1]

<p>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.</p>

<p>Thus it costs one zero except for gas and your time to get some expert real legal opinions.<br>

<br /> 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.</p>

<p><em>At any rate, I feel extremely uncomfortable with the idea that they have let me go but are going to continue to utilize<strong> my artwork </strong> for their financial gains.</em> <br /> <br /> 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.<br /> <br /> It really doesnt matter if you "feel" you own something you did while employed as an employee; its the actual law that matters.<br /> <br /> Thus a proper copyright lawyer would dig into this with vigor.</p>

<p><br /> 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.<br /> 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.<br /> Thus one gets a possible settlement and maybe a blackball too if the employer feels they were in the right.</p>

<p><br /> 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.<br>

<br /> <br /> <em>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.</em><br>

<br /> <br /> Above you said you did the work on company time; on the clock.</p>

<p>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.</p>

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

<br /> <br /> 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.</p>

[kelly_flanigan1]

<p>The purpose of going to a proper copyright lawyer is also to prevent you from doing something dumb and getting sued too.<br>

<br /> 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.<br>

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

<br /> Thus the copyright lawyer is to prevent you from financial loss due to assuming.</p>