Who has the right to approve useage of commissioned photos

[angela_lowry]

<p>We are a high design landscape/pool construction company. We recently approved for our designer to leave our company with her laptop, books, office supplies, etc to start her new design only business. (She agreed to pay for over time these items.) We had an agreement for her to continue on a need basis to work on some exsiting jobs at her current rate. <br>

We recently came across her new website that not only looks similar to ours but uses our "commissioned & paid" for photos. She went behind our backs and asked the photographers if she can use them. <br>

My question is -<br>

<strong>"Who has the right to approve usage of the photographs we have paid for?"</strong> <br>

These photographs have also been published in Magazines for our business and are used on our print work to aquire new clients. </p>

[tonybynum]

first, this is a photography site, not a legal advise site. . .

 

I'm not going to try to deal with the legal side of it, but from a business perspective, based on what you posted, and how I read it, if you own the shots, she should not be using them without your permission.

 

Having said that, have you talked to her about this? You might clear it up with a discussion. . . talk to her about it, find out what's going on and try to be reasonable about this. I'm not defending her but you sound like your upset about it. You sound accusatory (you might have all the right in the world to be so), i would take a step back, a deep breath, and think about this objectively before you go getting into a big legal battle. Give her a call and talk it over. If you dont want her using photos that you own politely ask her to take them down. . .

[garrett_cotham]

<p>As far as my understanding goes, whoever owns the copyright to the images has the right to approve usage. Do you have a contract with the photographer stating who the copyright owner would be after the images are created? If so, your answer should be in there. If you or your company owns the images then you have a case there and could get her to stop. If the photographer owns the images, then there's probably not much you can do except ask her nicely to stop using them.</p>

[Matt Laur]

<p>In most cases, the photographer owns the copyrights, and thus the ability to grant such permission. However: the only way in which <em>you</em> got to use those images was via some grant of license from the photographer. That license may, or may not contain language that says whether or not you have any sort of <em>exclusive</em> license to use them. Exclusive period, or exclusive to certain media, or exclusive to certain markets/uses... you get the idea.<br /><br />So, you'll want to look at the paperwork surrounding your contract with the photographer.<br /><br />That's a completely separate issue from whether or not, ethically, the scenario you describe is good form on the part of the former employee or the photographer. Too many variables there to comment intelligently on that. Me not lawyer, me caveman, etc.</p>

[Spearhead]

<p><i>As far as my understanding goes, whoever owns the copyright to the images has the right to approve usage.</i></p>

<p>This is definitely not always true. It is specific to whatever agreements have been worked out. I just did an assignment for a magazine, I own the copyrights, but I have no rights to use the photos from the session until 90 days after publication. This isn't unusual.</p>

<p>The comment on getting legal advice is reasonable, but read the contract first. If it doesn't spell out any exclusivity and if the photos were not part of work-for-hire, there isn't much you can do except ask to have them taken down. If there is exclusivity on the licensing or if the copyright was transferred to you, then write a letter or get a lawyer to write a letter.</p>

[john_h.1]

<p><em>the only way in which you got to use those images was via some grant of license from the photographer</em></p>

<p>Who is this imposter hijacking Matt's p.net account? The Matt who has seen all those employer vs. independent contractor related posts and references to government publications discussing how work for hire arises from certain employment situations. The Matt we know knows that "to leave our company" should trigger the whole employer vs. IE analysis.:) The imposter even called the photographer an employee. We need the caveman back!</p>

<p>The serious question, however, is why a "high design" construction company would go to an internet forum for legal advice? Don't they know you only go to such places when you want authorative sounding but largely incorrect legal advice?</p>

[angela_lowry]

<p>to John<br>

Our Description on "High Design" was to be descriptive of the type of photographs being commissioned. ie published in magazines, print and internet... commissioned by a business. <strong>The reasons i came to the site was to ask straight from the photographers point of view before contacting a lawyer.</strong> <br>

Thanks for your negativity! Much apprieciated.</p>

[Matt Laur]

<p>Actually, John, the former employee I was referring to was the landscaping firm's departing design employee. Even a <em>caveman</em> knows that one! I got the impression that the landscape company contracted with a third party (a pro photographer) who did the photography for them. No way to know if that was "for hire" work or not. But the departing design employee seems to be the person who made new use of the images. If I'm reading that correctly!</p>

[Matt Laur]

<p>Angela: John's not being negative... he's being cautious on your behalf. Way, way outside the bounds of this particular (photography-related) forum, internet message boards are notorious for sending people on law-related wild goose chases. So much so that a response telling you to not take anything you see here as actual legal advice is just boilerplate. A necessary, and expected part of the scenery.</p>

[Spearhead]

<blockquote>

<p><em>The reasons i came to the site was to ask straight from the photographers point of view before contacting a lawyer.</em></p>

</blockquote>

<p>That's not a good thing to do. Most people here have had little legal advice or training. Most haven't negotiated many contracts. Most haven't read the copyright laws. The "advice" you get here will include plenty of wrong answers, such as the one I singled out. That response ignores the fact that a license to use can be granted without giving away the copyright, and that license can have specific terms attached to it. And that leads to the other issue with your question - in the absence of additional information, you are only going to get very general information that doesn't deal with your specific situation. You give no information about a contract or agreement with the photographer, so who can tell what is right and wrong, especially when yet one other party (the designer) is involved?</p>

<p>As Matt says, way beyond the bounds of this forum.</p>

[ellis_vener_photography]

<p>To my eyes this seems more like a dilemna that falls into the category of employment law (between you are your ex-designer) than it does under copyright law.</p>

<p>By "start her new design only business" do you mean pool design or graphic design?</p>

<p>If pool design, is she now in direct competition with you?</p>

<p>Did she design or was the lead designer on your company's products?</p>

<p>If so , what did her employment contract say about who owns the copyright on the pool designs? What did her termination agreement say about her using her work at your company to promote herself?</p>

<p>Do you think she is now making false representations of who did that work?</p>

<p>If she credits your company on her website for the pool design work she is featuring would that satisfy you?</p>

<p>If by "Design" you mean graphic design work and she designed your marketing materials, how she cause your company harm by including the work she did in her portfolio (which would necessarily include the photographic representations of the pools?</p>

<p>Depending on your contracts with the various photographers , what usage licenses, and embargoes are specified in the terms and conditions as well as the description of the work?</p>

<p>Of course if you feel like the photographers have screwed you by not clearing it with you in advance, you have every right not to hire them again. Have you spoken with the photographers?</p>

[garrett_cotham]

<p>Jeff- first off I apologize for giving an opinion which apparently wasn't close to being suitable. Hey, it was early on a Sunday morning. Just a case of brain no work. I've done plenty of assignment and stock work for publication and am well aware of licensing agreements within contracts. You are correct, it does depend more on whatever agreements are made in the contract, which is why I asked if she had one with the photographer. But even with a licensing agreement, chances are good that at some point in time it will expire and Angela will could find herself facing the same dilemna.</p>

[john_h.1]

<p>No negativity here Angela. Just some wry humour by responding in the form of questions instead of a usual boring response. Hey, if a caveman didn't get upset, it couldn't be all that bad right? Sorry. </p>

 

[craig_gillette]

<p>Not just the forums can be wrong, there are blogs and other law related articles from photographers that aren't necessarily accurate.</p>

<p>Generally speaking, in the US, the copyright owner has certain exclusive rights as to how the "work" is used. The owner can enter into contracts and/or license out some of those "rights" to others. However, when there is employment, it's possible that there is a "work for hire" condition. When a "work for hire" situation exists, the employer, not the artist/creator, is the copyright owner and can exercise those rights. The problem you'd find is "employment" doesn't automatically create a "work for hire" condition.</p>

<p>As the specifics of the terms of employment may or may not create a "work for hire" relationship, the only way to get accurate information on the legal issues is to get the assistance of attorneys (or others - but not necessarily forum posters) familiar with the mix of employment and copyright law and any contract terms and the specifics of the work performed by the employee.</p>

<p>Companies with employees doing creative work should have employment contracts that cover the work for hire issue to eliminate (or at least greatly reduce) the potential for problems of this sort. That way neither party has to back into finding out their legal standing after a problem develops.</p>

[kelly_flanigan1]

<p>Interesting.<br /> <br /> Its this a rehash of the other side of the fish store manager chaps story last month?.:)<br /> <br /> As an employer here it is interesting how the stuff that one paid an employee to make while on company time gets stolen; one considers it if was really stolen. What if it was trade secrets; 10k in cash; tools; the data base of clients?.<br /> <br /> It seems on photo.net photographers want the luxury of having to be cared for by an employer; but also want to rip them off by stealing the employers images too when they leave.<br /> <br /> Normally in companies the employer own all; unless the there is a contact giving the employee; tools; images; designs etc.<br /> <br /> A better company avoids this bs and has clearly defined forms and documents; so ownership is defined. Disney is not going the allow an employee steal a design; you just get squashed like a bug.<br /> <br /> The person is either an employee or a contactor. The employee might be making a new fax form; a new spreadsheet for inventory; photographing items for ebay sales; photographing portraits for customers; or whatever.<br /> <br /> The lowly employee Walmart photographer if he is paid as a Walmart employee does not own all portraits he shot in the last decade; walmart does.<br /> <br /> These threads are always abit odd; if the person was really an employee you tell them what to do; you do not use the word contact or commision.<br /> <br /> In a creative field the employer might have a contact to eliminate the jokers who steal their designs; or limit where and when the usage is. Its is ALL ABOVE BOARD with no secrets; thus if they and steal the employers tools; cash or images you sue the crap out of them; since they are criminals.<br /> <br /> (1) So was this person an employee or not?<br /> <br /> (2) was there any document wording/saying who own images; spreadsheets; designs when the person was hired?<br /> <br /> (3) was there and documents creating stating the usage of the images or designs?<br /> <br /> (4) See a lawyer; the person was either an employee or not<br /> <br /> (5) Matts comments way above mention the images were shot maybe by a 3rd party; thus maybe NOT your employee at all.<br /> <br /> (6) If the images were shot by a 3rd party that was not your employee then you are adding layer of crud to ownership; and you really really need an lawyer to sort out your mess.<br /> <br /> (7) without any clear details you will get alot of bs answers; ie garbage in; garbage out.<br /> <br /> (8) get your facts straight and see a lawyer.</p>

[kelly_flanigan1]

<p>A lawyer may give you a pop test:</p>

<p>(1) who snapped the actual images?<br>

<br /> (2) were they shot after 1978 ?<br>

<br /> (3) was the person who snapped the images your employee?<br>

<br /> (4) did you have a contact/document saying your employee owns the images and or designs?<br>

<br /> (5) The "owner" points to the employer; not the employee if there is no wording/document saying otherwise. The employer is considered the author / owner of the photo if the photo was made in the course of his or her employment.</p>

<p>Item (5) is hard to fathom for many photo.net-ers; they want the safe nipple; cocoon; health benefits;life insurance; matching social security; paid vacations; sick days; PLUS to be able to leave and steal their employers images; tools; cash. :) It is your basic American wanting something for nothing.:)</p>

<p>Defining who owns what BEFOREHAND avoids a ruckus when somebody leaves a firm; or shoots images for a firm.</p>

[jaybee]

<p>I'm a CPA, not a lawyer. If I'm answering a question on taxes or accounting, my response is much more reliable than when I'm answering legal questions. With that in mind, I actually believe the answer to your question is fairly simple -- what does your agreement with the photographer say?</p>

<p>If it's not in the agreement, or you don't have one, you need to see a lawyer.</p>

[mark_davidson]

<p>Not to stray too far from the topic....<br>

But this situation illustrates all too well the problems in the field today.<br>

Commercial photography was often contracted through an agency or art department that understood the the principles of licensing and usage and would commission images on behalf of the final user.<br>

Today the end user goes directly to a photographer that may have gone in to business in the last half hour. Together they make an amicable agreement to work on a project with little or no understanding of the principles of licensing, copyright or usage. Many times the deal is completed to everyone's satisfaction. Sometimes it is not and that is when the lack of experience on both parts become obvious.</p>

<p>It is a regular part of my job to speak to clients about the importance of a contract that spells out all these details. We sign in friendship and know we have a benchmark of performance and expectations.<br>

One of the best books for aspiring and established pros to read is the ASMP Professional Business Practices in Photography, 7th Edition. This is a must have for anyone taking business seriously.<br>

Available at Amazon.</p>

[amy_blandford]

<p>Hi, <br>

Here's the "two-cents" (okay, way more than you ever wanted to know) of an illustrator/product designer, lurking in the photo forums. I've worked both as a freelance designer where I assign particular rights to each client, and also as an employee where my employer owns the rights to everything I create at work / on work-owned equipment."Whoever owns the copyright to the photos" basically answers the question, but not entirely. (That's assuming she designed whatever's in the photos; if not then NO, she shouldn't use them, end of story!) </p>

<p>BUT- (and this is a huge big but for designers, & anyone who lives or dies by their portfolio) regardless of who owns the copyright, no matter how many times it is licensed or sold, the creator still legally retains the Right of Authorship to everything they've created. (It's protected under the law, not something that gets included -or not- in any particular contract.) Even in work for hire, the the employer is the owner but is NOT the author of a work of art (as was previously stated by someone else). I don't have the right to resell the image itself or resell the designs related to the product depicted in it, but I will always have the right to say "I created this."</p>

<p>My point is- if the former employee designed the projects in the photos, and the photographer has the right to let her use them, neither one has done anything wrong. If the photos are the property of your company, you can legally make her stop using them. If you do, she could probably get permission from the property owners to have her own pictures taken for her portfolio at her own expense. By the way- in 15 years as a professional, <i>never once</i> has a client or employer, current or former, not let me use portfolio images of things I've designed. (I've "sat on" proprietary stuff until it was made public of course, but that doesn't seem like an issue here.) Some let me use the very same photos on my website that they already paid a professional photographer for, (which I wouldn't do without asking!) & sometimes I just get a sample of whatever it is and photograph it myself.</p>

<p>It seems that usually when things like this happen, it's because people on both sides misunderstand what's okay, not because they're trying to be mean or get away with something. We don't learn what we <i>should have</i> gotten in writing until things get weird. She might not have realized you would see it as her going behind your back- if she was still planning on working with you on existing jobs, that would be an odd course of action, right? How I would go about handling it would depend on whether it's worth continuing that relationship (as well as who's legally in the right). In my experience, Being Right is always a good short-term solution, but Being Gracious works out better in the long run!</p>

<p>oh- and me not lawyer either- me fellow caveman.<br>

:-) Amy</p>