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

[kelly_flanigan1]

<p>Re<br /> <em>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<strong> their financial gains.</strong> I would very much like to deny any further use of my work by the store.</em> <br /> <br /> <br /> What if you just made a spreadsheet that as an employee that allowed one to:<br /> <br /> Inventory the fish radically quicker?<br /> <br /> Keep track of sales; ie what customer buys what?<br /> <br /> What if one just programmed the thermostat to save ones employer money?<br>

<br /> <br /> Most successfull managers are constantly looking for ways to cut costs; cut time; reduce waste; cut inventory; it is just like breathing.<br /> <br /> An employer needs an employee to do things to create <strong>financial gains; </strong> that is what makes a profit to stay afloat; it pays the massive costs of insurance; taxes; labor; rent; lawsuits.<br>

The gains are the engine to make a profit; that is where the money comes from to pay employees.</p>

<p>I feel the employer had you to shoot the images to save money; and you just assumed you still owned them.<br /> They could pay an outside firm to program the thermostat; count fish; shoot the images too.<br>

<br /> Its most common that a company does "stuff" in house; whether its artwork or walmart doing a buggy roundup in the parking lot.</p>

[john_h.1]

<p>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.</p>

<p>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.</p>

<p> </p>

[mrossi]

<p>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?</p>

<p>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.</p>

<p>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?</p>

<p>As with many photographer's queries here, I think this is going to eventually get filed into the "lessons learned" category.</p>

 

[kelly_flanigan1]

<p><strong>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?<strong></strong> </strong><br>

<br /> Why is this even considered a "complex issue"?<br /> <br /> It seems extremely simple<br /> <br /> One was paid as an employee and thus the employer owns the work.<br /> <br /> 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?<br /> <br /> 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?<br>

<br /> Why in hell would an employer hire folks if everything the had an employee do was now the employees?<br>

See a lawyer</p>

 

[kelly_flanigan1]

<p>The whole "volunteer" thing really makes no sense at all.<br>

<br /> 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?<br>

<br /> Its more complex when one has an actual grey area;<br>

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.<br>

<br /> 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?</p>

[kelly_flanigan1]

<p><a href="http://www.iciclesoftware.com/vlh7/VLH8Contracts.html">If the "volunteer" receives some form of "compensation," other than the pleasure of serving in a good cause, the "volunteer" is likely to be treated as an employee. Volunteer Legal Handbook, 8th Edition<br /> Handbook > Law > Contracts</a></p>

[kelly_flanigan1]

<p>In a lay non-legal peanut gallery way my take is that<br /> the term "volunteer" Joe is using is<br /> that he said I will/can do the task as a paid employee;rather than:<br>

<br /> saying he would do it for free;<br /> <br /> ie after hours;<br /> <br /> ie not on the clock;<br /> <br /> ie something performed as a free Volunteer effort like most Legal Handbooks and contacts talk about.</p>

[christian_odell1]

<p>I think the bottom line is this: <br>

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.<br>

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.<br>

Just my two cents worth.</p>

[rob_shane]

<p>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. <br>

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.<br>

Lemons to Lemonade. </p>

[david_henderson]

<p>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. </p>

<p>Whatever, need to take your contract when you visit a lawyer. He may wish to draw a distinction between intellectual property generated <em>in the course</em> of your employment and that generated <em>during</em> 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.</p>

<p>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. </p>

 

[jerryrock]

<p>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).<br>

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.<br>

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.<br>

my 2 cents..........</p>

 

[jon rennie]

<p>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.</p>

[kelly_flanigan1]

<p>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?<br /> <br /> If its the take today to ignore copyright laws then lets bring the big depression on big time; cutting jobs.:)<br>

<br /> 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.<br>

<br /> Its not volunteer work; is paid for work.<br>

maybe many folks here are confused; or on the dole or never figured out what a paycheck is for? :)<br>

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

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

<br /> At some point actual laws need to be observed.<br>

<br /> Maybe the something for nothing dogma and handouts has fogged the issues? :)</p>

[kelly_flanigan1]

<p>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.<br>

<br /> 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.</p>

<p>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? :)</p>

[jpo3136b]

<p>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. </p>

<p>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. </p>

<p>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.</p>

<p>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. </p>

<p>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. </p>

<p>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? </p>

<p>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. </p>

<p>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. </p>

<p>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. </p>

<p>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.</p>

[mrossi]

<p>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 <em>them</em>?</p>

<p>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.</p>

<p> </p>

[jpo3136b]

<p>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. </p>

<p>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. </p>

<p>Good luck. J.</p>

[vorlandphotography]

<p>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.<br>

"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."</p>

[kelly_flanigan1]

<p>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?<br>

<br /> It is actually a slam dunk case for the employer; he was an employee; who owns the images.<br>

They also own designs; artwork; spreadsheets; software; fax cover sheets; all the work an employee is paid to do.<br>

<br /> 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.<br>

<br /> He wasnt hired as a photographer; he was already employed there.<br>

<br /> 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.<br>

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.:)<br>

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

<br /> 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.</p>

[kelly_flanigan1]

<p>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.</p>

[peter_kervarec]

<p>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.<br>

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.<br>

I think at very least, you should be paid the going rate for Post Production that you completed out of work hours.<br>

Peter</p>

[craig_gillette]

<p>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.</p>

<p>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.</p>

<p>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.</p>

<p>http://www.copyright.gov/circs/circ9.html</p>

<p>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.</p>

[john_h.1]

<p>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...</p>

<p>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.</p>

<p> </p>

[kelly_flanigan1]

<p>Peter; head the actual <a href="http://www.copyright.gov/circs/circ9.html"> Copyright laws of the USA here</a></p>

[kelly_flanigan1]

<p>Peter read this : </p><p><br>

<i>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. <b>If a work is made for hire,the employer, and not the employee, is considered the author. </b>

The employer may be a firm, an organization, or an individual.</i>

</p><p><br>

This law is over 30 years old now; its abit common knowledge; its written in plain English.<br>

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. <br>

<i><br>

</i>

<br>

<i>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.</i>

<br>

<i><br>

</i>

<br>

<i>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.</i>

<br>

<i>The sad thing is folks assume stuff; and want the laws to magically be erased to fit their agenda.</i>

<br>

<i>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.</i>

</p>