Amateur Ask to take photos for Primary Employer

john_bolton2 · June 14, 2009

I think you'd have to be crazy to put forth the conditions outlined, unless you hate your job and want an excuse to find another. Either way, your employer WILL remember. Do you want the memory to be favorable or unfavorable?

alec_myers · June 14, 2009

You know, I think the easiest thing to do would be to take the photos as requested, but make them really really crap. So they'd never want to look at them again, let alone use them. Then you're totally off the hook for the future too.

john_h.1 · June 14, 2009

Re: Jeff, you are correct. By definition (law), if they require him to use his own equipment/tools, he is no longer an employee, but a contractor. Kelly, could you please post an actual legal case, statute, treatise or other authority that states that using one's own tools, ALL BY ITSELF, automatically makes one an independent contractor. If you start at Circular 9 at copyright.gov, it brings up the landmark U.S. Supreme court case CCNV v. Reid on the issue which identified certain...

"factors that characterize an “employer-employee” relationship as defined by agency law:

1. Control by the employer over the work (e.g., the employer may determine how the work is done, has the work done at the employer’s location, and provides equipment or other means to create work)

2. Control by employer over the employee (e.g., the employer controls the employee’s schedule in creating work, has the right to have the employee perform other assignments, determines the method of payment, and/or has the right to hire the employee’s assistants)

3. Status and conduct of employer (e.g., the employer is in business to produce such works, provides the employeewith benefits, and/or withholds tax from the employee’s payment)"

The government circular then explains how "[t]hese factors are not exhaustive." The definition of the word factor is "one of the elements contributing to a particular result or situation" Obviously if "provides equipment" merely a factor, it is not the be all and end all that you say it is. Moreover, the Supreme Court didn't even treat the equipment issue as a factor but only as part of a factor. If you are correct, then the goverment circular is wrong and the United States Supreme Court would have had to recently overturn its own decision in CCNV v. Reid or a new federal statute to that effect would have been signed in to law. Could you point to the USSC case or federal statute that does this. If the govermentment publication is wrong, we really ought to know. Red is already an employee; already "hired" probably awhile back. If he is aleady an employee there is no way that there can be a "hiring party" when shooting the images; he has said he is already an employee.

This assumes that the photo shoot is a requirement of his job. If it is, then this is correct. If not, it is wrong. While Red said he was an employee, he did not say whether he is required to shoot the photos as part of the employment, just that he was "asked" which could mean he was given an option or politefully instructed to. My point, which you missed, is that he might be or could become required to do so as part of his employment. You assume that I have concluded the photo shoot is part of his employment. I did not offer any such conclusion.

kelly_flanigan1 · June 14, 2009

Jeff;

Re "Kelly, could you please post an actual legal case, statute, treatise or other authority that states that using one's own tools, ALL BY ITSELF, automatically makes one an independent contractor."

I have heard of none; and have worked as an either an employee or an independent contractor for many decades. I have never heard of such a tale.

That is why I mentioned "A Judge could sight millions of old draftsman from old Boeing who designed the B17, B24, B29, 707, 747 etc that used their own pencils; triangles; scales; compasses; dividers and thus conclude that they own the 747's design; since their own tools where used?" ie being sarastic; making the silly stretch/fib saying if one used ones one tools; own owns the design or image.

This whole gamit of playing "it is not part of my job description ploy" is really a lame defense.

An employer owns all the stuff you do; lock stock and barrel. As an employee you can refuse to answer to to ones boss; walk out of meetings; demand bonusesi; refuse to shoot images; refuse to answer the phone; refuse to dance on a pin. If one is asked to make a new fax letterhead and you are just a flunky; you still do not own the design because you are not a graphics artist.

The person who shot the images is an employee; NOT a independent contractor. They made the DECISION of whether to shoot the images; make a jingle; make a new fax form.

One COULD have told ones employer to pack sand; or say one cannot do it; or one is not qualified. BUT the employee made the decision to do the task; on company time; paid as an employee.

An employee can demand/blackmail for a commission on each fax form used; each image made.

Getting a secure paycheck as an employee with social security taken out for almost TWO DECADES from the same employer really points to a clear cut case of being an employee; one got paid as an employee while shooting the images.

A person who "I have been employed by this company for almost 20 years " really points to being employee; NOT an instant independent contactor for the moment in retrospect to serve as a gambit to grab an employers images.

Every thread on photo.net has employees who shoot images on company time; paid as an employee; then they want ownership; when the employer already owns them.

Just do not assume that as an employee you own stuff done on company time.,

jared1 · June 14, 2009

As I have stated before, my pay scales are complicated, and perhaps unique.

I submit items for commission payment & hours worked on specific predetermined duties for payment. I never "clock" in or out. I have always been paid this way. I have 5 different pay scales depending on what work it is I am doing. Artistic/Photographic work has never been included or specified as one of my work duties. As this work up to this point has been uncompensated personal time performed at my place of employment is why I initially ask these questions.

I now understand much more clearly.

Regarding an earlier comment by Alec... I considered submitting sub-standard work to prevent being ask to do this again. It is not my desire to do poor work intentionally.

bryan_lardizabal · June 14, 2009

art direction + photo shoot + zero experience = chaos

john_h.1 · June 14, 2009

Kelly, I did not see Jeff A's comment about the tools and his remarks weren't boxed or in quotations in your post so I thought they were yours. Your analogy makes sense to me now. It is a very good one. Thank you for the clarification. I'll transfer my response to Jeff A's post instead.

Certainly if the shoot were in Red's scope of employment and, thus, a work for hire scenerio, the issue of ownership is settled. The issue of whether the shoot is actually within the scope of employment needs to be determined first. He told us about some of facts that are relevent to answering that question in the absense of a written arrangement.

alan_rockwood · June 14, 2009

Red,

I am not a lawyer, so take my comments with a grain of salt. This applies to most, if not all of the posts in this thread so far. If an answer to your questions is really important then you should consult a legal professional.

With the disclaimers out of the way, here is how I see it.

First, here is an interesting link relating to "work for hire." http://www.copylaw.com/new_articles/wfh.html. I do not know if it is authoritative.

From your description, it sounds like you control your own schedule, at least to the extent that you do not clock in or out.

Correct me if I am wrong, but it also sounds like you have some discretion over the tasks you accept, and that these tasks are generally mutually agreed upon before you do the tasks, or at least your duties are pre-determined in some way.

I don't know if your arrangement would qualify as an employee-employer relationship or as an independent contractor arrangement, but from your description it sounds quite a bit like it is an independent contractor relationship. If so then the copyright to your work owned by you unless the arrangement meets a number of stringent requirements.

According to the link referenced above, one of these requirements is that "prior to commencement of work, both parties must expressly agree in a signed document that the work shall be considered a work made for hire." From your description so far it appears that you have not signed such an agreement. Therefore, it seems to me that the copyright belongs to you, assuming that your relationship is as an independent contractor.

Your plan seems to be to inform the company that you retain copyright, and that you will ask for payment. You might be within your rights to do this. However, before doing this the first things you should ask yourself is how important is it to you to retain copyright, and how important is it that you are paid for this work. Additionally, as someone else mentioned, do you want to avoid setting the precedent that photography is considered part of your work duties? In addition, you should ask yourself whether your proposed plan will significantly damage your relationship with the company, and if so then how much weight should you attach to this.

None of us here can answer those questions for you, but once you answer them to yourself then you should talk with a legal professional about the best way to accomplish what you want to do. In the meantime, read what others have posted here to help you formulate your thoughts, but don't make any serious decisions based on the advice given in these posts.

Of course, you could simply let them have the photos and chalk it all up to goodwill.

Finally, with regard to the photos already taken, are you sure the photos are stored in a safe place? Digital files are easy to lose, and you probably don't want to have to shoot the photos over again.

kelly_flanigan1 · June 14, 2009

Red; there is much confusion here; ie as Bryan mentions chaos.

***Your first post says " My employer is currently redesigning his e-commerce website."

and again" My employer can't or won't offer suggestions on the look he wants and the "in house" advertising person doesn't seem to understand what images will be useful for this purpose."

and again " I have been employed by this company for almost 20 years so".

The whole first comment has "my employer" twice; and mentions " I have been employed by this company for almost 20 years so".

***Explain how one can be an employee for about 2 decaded years and say the phrase " my employer" ;and then one try the contactor card. You need to get your story straight.; or further explain what you are.

Then last you state "I submit items for commission payment & hours worked on specific predetermined duties for payment. I never "clock" in or out. I have always been paid this way. I have 5 different pay scales depending on what work it is I am doing."

Abit is abit easy to see if one is an employee or not.

Employee have paychecks with social security and medicare deducted; your employer matches abunch too. In the employee case in the the USA ( are you here too?; maybe that is the confusion!); there is a clear legal mess of payments you cannot hide from; 20 years of your employers withholdings; matching payment; yearly W2 forms.

In the independent contactor case there is no withholding usually; you get a 1099 form each year; you pay the social security taxes; about 15.8 percent.

One does NOT have to clock in and clock out to be an employee; there doesnt even have to be a time clock at all.

Are you in sales; thus a commission payment scheme? If you submit invoices and are paid like a vendor; that points more to a contactor; but that totally conflicts with your statements of "my employer"; or " I have been employed by this company for almost 20 years so".

what would a judge; lawyer; or IRS agent say about all this; it seems like in one paragraph one is an employee for 20 years;a dn the last says "I submit items for commission payment & hours worked on specific predetermined duties for payment."

A Patton type IRS agent in the USA could solve this riddle in his sleep; he peeks at your IRS income tax forms; he checks how you are paid. Ie are there 1099's; or w2's; or both maybe.

If all your submit-ills:) paid 5 differnt ways are on a W2 and you say your are employed for 20 years from this company; how could one be an instant contractor for the place you have been at for 2 decades?

I guess I just do not understand how folks bring up the independent contactor thing when you clearly say employee or empolyer many times. If you quit and came back as a contractor that is a different matter. One cannot probably hide from 20 years worth of W2's if you are an employee at a business in the USA; it is plastered everywhere.

So is the "items for commission payment & hours worked on specific predetermined duties for payment." paid on a 1099 or a W2?; or undocumented cash! :)

In the Building industry one doesnt call ones subcontactors "employees" the are "subs". Subs are typically contactors; the get a 1099; not a W2.

Usually the IRS is scanning for contractors that are really more like employees; thus even if one gets a 1099 be aware that the IRS chaps can review a company and apply "tests" to see if one is really a contactor or an employee.

alan_rockwood · June 14, 2009

There are many factors that determine whether a person is an employee or an independent contractor. No single factor is definitive. Evidently, that includes the filing of 1099 vs. W2. tax forms, although I understand that tax reporting issues (1099 vs. W2) are given high priority.

Here is an interesting link that discusses this topic.

http://www.comptroller.ilstu.edu/downloads/20-factor-test-for-independent-contractors.pdf

Also, an interesting question is the following: Is there a difference in classification of employee vs. independent contractor in tax law vs. copyright law? In other words, if one is classified as an employee for tax purposes, does that classification automatically carry over to intellectual property matters, or are they somehow considered separately? I certainly don't know the answer.

craig_gillette · June 15, 2009

The IRS and Treasury, etc., deal with tax laws. The Library of Congress handles copyright registrations, etc. Congress passed the laws involved. They didn't coordinate the legal definitions of employee and contractor.

lintrathen · June 15, 2009

Hi Red..... Been there, done that....... Let's cut to the bottom line here..... either you accept the offer as a freebie to your company (hopefully talking them into a bi-line "Photography by" etc, or walk away from it. Any Pro will tell you of the pressure placed to "produce the goods". You've said you're an amateur, so use this experience to hone your skills. By all means try to ratify the hours/wages issue, but don't put your "day" job at risk over a few pics. If I was in your position I'd walk away, having said that, I regularly do freebie pics at work.... it keeps me noticed (in a huge company) and hopefully keeps me employed. Leave Pro stuff for the Pro's.

Best Regards

Grayham

kelly_flanigan1 · June 15, 2009

Alan' ask yourself how if somebody has been an employee for a company for 20 years; that they can instantly be a contactor; to lay claim to an employers goods? If this is the case folks could always be a contactor for a day; then rape thir employer. No sane employer wants to deal with unknown blackmail; ill claims to patents; forms; images from an employee. That is why pros establish terms BEFORE the shoot; so it is all above board; no blackmail. It has been well established that an employer owns lock, stock and barrel of what an employer does. One must dwell on theh impression one makes on a 20 year employement; for submitting a bill for stuff you did on company time.

garydem · June 15, 2009

my thoughtts for your situation-

-i would decline politely but firmly. to me this an no win situation for you. they, the employer and ad person, have no real idea of what they want so how will they know or tell you? what happened to the pro photog will happen to you, but with one difference. the differnce being that you work there, so will/can your inability to produce the pics that they want reflect now or in the future on the rest of your job performance, regardlees of what they say now? note, that after you take the pics, if you do, that you have tpo work there. that pro simply walked away, you cannot.

-i have shot commercial but the circumstances were such that i did not know these people and i was asked and volunteered to shoot the pics. i didnot work there. the work was done gratis, i wanted the experience.

- and i would side with the view that the pics and all rights belong to the employer not you. you are shooting the pics as an employer and as a paid agent of the company. that cannot be changed. if what you shoot becomes $100000 later, it is the company's not yours.

-there is no way that if i worked for a company as an employee not as a photgrapher that i would do phtographic work for them. the only exception would be that the employer changed my job to the photogragher of the company and made it worthwhile to me in compensation and there was a future as a photographer later, and this was not just a one time change in job assignments.

davie-b1 · June 15, 2009

Replying to Kelly's post of 6/13 10:34pm

<ul>

<li>"... if one didn't sign off the official dogma one got terminated." </li>

</ul>

We've all heard the the old axiom "The squeaky wheel gets the oil." While this might be true for actual wheels, when it comes to employees the squeaky wheel is quite often simply replaced!

thomas_sullivan · June 15, 2009

"....My employer can't or won't offer suggestions on the look he wants and the "in house" advertising person doesn't seem to understand what images will be useful for this purpose..."

forget all the legal mumbo jumbo....that sentence above....all by itself would tell me not to take the assignment. They have no clue what they want....or even if they really want it in the first place. I wouldn't even begin to presume I could please them when they don't even know what it is that would please them. I think you're putting yourself in a complete no win situation. At least say no until they can answer what it is that they want, and get that ad guy to say he wants it in the first place.

as for the legal stuff.....I'd ask a lawyer.

john_h.1 · June 15, 2009

Kelly, you are fixated on an employee being an employee which is well and good but someone can be an employee for one job and an IE for a different job even if the different services are performed for the same person or entity. I won't venture to make a conclusion here as to whether this is a different job and it is unwise for anyone else to in this unusual situation.

It seems practical however for red to avoid this potential mess altogether. Thomas just gave another reason.

kelly_flanigan1 · June 15, 2009

John; What is an IE for a different job?; and Industrial Engineer?

Red did not say he was doing the task for another employer; it was his employer of 20 years.:

RE " ***My employer**** is currently redesigning his e-commerce website. The web designer has been hired and has ask for some very specific images to be taken for use on said website. Pictures will also be used in print advertising for the next several years. A pro was hired and conducted 2 formal photo sessions (These were directed by the "in-house" advertising person). All rights were surrendered by the photographer. The photos received are not suitable for the purposes outlined above, and the ad person is unhappy with the photos taken at their(ad person) direction. I have been ask by this ad person to take some photos that would be suitable for use. These images are being used to show the "personality/identity" of this business. *****I have been employed by this company for almost 20 years *****so I understand what this company wants to show to the public whether honest and true or not."

It is really not unusual for somebody to do many tasks in a company as an employee; here I usually shoot the Ebay photos; but have had a few of my employee shot images for our auctions too; or to shoot images of a damaged truck shipment of goods we receive. None have a title of photographer; or job description as such.

If a person really is an employee sweeping foloors for 40 hours at ACME; and a Independent Contactor at ACME writing jingles; there would be a clear history of Invoices; 1099's for the Contractor portion; plus the person would call this activity his client; not his employer.

This whole thread smells of "wanting to be a contactor" to claim ownership; because it asks after the fact: "What are suitable prices for images to be used in this way? (Web price and Print Ad price)"

If the employee fry man at McDonalds looks back at last Thursday and realizes he shot two employee ID cards; and one employee of the month image; does he lay claim to the copyright? His offical title is Fry Guru. Using this goofy thread as a model he could bill McDonalds saying he was an Independent Contactor for the moment; and demand a royality on these images!

An assocate at one company long ago tried this" I am a contactor" gambit when some patents got filed. Gee he got terminated. Thus he sued; his lawyer got 5 k; he got 10 k. 12 years later I was in Toyko on business;' and heard the 12 year old story being told from another person ; vendor to the industry I worked in. Thus 12 years later Kilroys name is mentioned as somebody who pulled a stunt; who got paid off; one to avoid hiring.

The lawyer got the 5 grand; Kilroy got 10k; plus A REPUTATION.

The ecomony is great; sueing ones employyer; or sending invoices for stuff is easy. Companys are flush with cash; unemployment is low; Kilroy will be hard to replace! :)

alan_rockwood · June 15, 2009

Kelley,

Neither you nor I know if Red would qualify as an "employee" or an "independent contractor" for the purposes of copyright law, regardless of the wording he used in (partially) describing his situation in his post.

Alan

john_h.1 · June 15, 2009

If a person really is an employee sweeping foloors for 40 hours at ACME; and a Independent Contactor at ACME writing jingles; there would be a clear history of Invoices; 1099's for the Contractor portion

There would not be a history of documentation if an IE assignment were brand new. Since this particular task is itself brand new, history of documentation is irrelevent.

plus the person would call this activity his client; not his employer.

Not necessarily. Red may be calling the business his employer even if it is a client. Someone might do a shoot for their father and call them their father instead of their client. Some people might do a shoot for their church and call the entity their church even though its also their client. The fact that a shooter uses some title or label for a particular person or entity is irrelevent to determining whether they are an IE or employee. Here, the issue is whether the the business is technically his employer FOR THIS PARTICULAR TASK, not the name he calls the business. He could have called this company his contractor client a hundred times and that, too, would be irrelevent. The status of the images, absent a proper written agreement, is determined solely by the balancing test of factors of control or lack thereof to see if it is a work for hire as we already discussed. Stop fixating on what Red happens call this business. Its totally meaningless.

Turning back to the relevent issues, the factors showing the amount of control the hiring party excercises, you identify various ones supporting a contention that Red would be an employee. Red identified some which support the opposite. While you may adopt a hardened position that this must be an employment scenerio, I don't adopt any position because I recognize all the factors in the balancing test here, not just the ones for one side or the other. I also account for other variables that we don't know about arising from this complicated scheme Red describes.

As to practical concerns, yes, successfully asserting legal claims of ownership could cause a win the battle but lose the war situation. No one seems to be disputing that.

craig_gillette · June 16, 2009

No matter what one does or how one is employed, the business end of the "shoot" has to be done before the shoot and the images are delivered. Otherwise all parties are going to be playing catch-up with the law and their mutually exclusive "expectations."

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