Employee, Work for hire, Who owns the copyrights ?

[mark_mark9]

<p>John I would recommend to ready all posts before you start your "I know everything better" We talking here about my case not about if...</p>

<p>I said very clear I was independent contractor, There was no written agreement, and before you tell me to read the link you read posts....</p>

<p>Employee employer relation ? How about that I was wearing at the weddings MY shirts, with MY name and MY company logo on it. I was giving couple MY business cards with My name and MY company logo. Not enough ? She wasn't involved in process of creation, I was using my private equipment and my computer, nor she was involved in pictures delivery process. I was sending everything and I have every single delivery confirmation in my record... BTW CD had MY logo on, and MY name on.... Benefits ? never got penny back for gas, tolls, never had any insurance.... and I was hiring MY assistant and I was paying him.... If I said I can't take picture at the wedding you booked because I'm going to cool my ass of in the swimming pool she could only say: PLEASE HELP ME and sometimes I was helping....<br>

<br />Show me relation here ? I can give you 10000 explanations and situation proving that I wasn't here employee, good reasons those mentions in the employee - employer relation law....<br>

<br />I worked in my career for : NG, NASA, NAVY, USAF, Discovery Channel and you can find my work in publications all over the world - I have very different specialization than wedding photography - right Mary ? You can even find my pictures in Encyclopedia Britannica, I signed tones of work for hire agreements and even that I never lost copyrights to MY pictures, There was share agreement, there was unlimited usage license agreement but never such a BS like she is trying to push. I already talked to my attorney and he said case is clear for many reasons, starting from identify theft that she is practicing finishing on 1099 form<br>

<br />I did huge mistake stepping in the s...t called wedding photography because in 2010 she called me and asked: Can you help me please, just please don't charge me a lot.... and I said of course I can because we locals because we neighbors and if I can I will support you and your business with my name and photography... and this is what I have now.... I will fight for every single picture that she used and every single penny that she made of my work... and I will request to pay all those money on some Photography for Kids program or something, I don't need a penny from that woman. She was sending emails signed with my name and selling pictures and products as a me.... I just discovered that few weeks ago....<br>

Right M M ? Where is your honor... I was trying to help... and let you use my name and my company to improve your business because before all that wedding company had was a bunch of hobbyist with first dslr camera....<br>

Now she will be lying to people because customers asked for me and my service and she can not provide it anymore, however she charged them my price... Welcome to the Wedding business ladies and gentlemen. FARMING... thats what she does....</p>

<p>She sent me couple days ago similar case where Employer claimed copyrights... but employer was photographer and was hiring assistant.... :) Thats how I found your forum guys :) Now I love it :) I premiss after all this mess I will start using my real name and I show my pictures:) As always I hope to learn something new every day and I see that here is a lot of great photographers.....</p>

[mark_mark9]

<p>and one more thing John.... 1099 is a proof of being Independent Contractor, you can't by the law name someone employee. She can name me employee when we talking etc, but according to law I wasn't employee I was independent contractor, She can use word employee as a well known and commonly used word to describe someone who work "with you/ for you" but to be named employee by the law you must meet a lot of requirements first: Taxes, W-2 and other stuff that determine relation ship.... and if you read carefully you may notice that there was no relationship, It was friendly relationship, I was helping her as a ME wearing shirt with huge logo representing ME and MY company... funny part is that my logo is not related to wedding business at all it shows What my photography specialization is.... and thats what I do pretty much every single day :) I take pictures of.... something :) </p>

[Spearhead]

<blockquote>

<p>What in this situation ? Who is the copyrights holder ? Anyone can help ?</p>

</blockquote>

<p> <br>

Why did you ask if you think you already know the answer? John is one of the people here who is most capable of providing advice, and takes a lot of his time to do it. You asked the question, but you only want to hear from people who tell you that you are right. Not much point in posting in that case.</p>

[steve m smith]

<p>In my opinion there are two ways the OP can handle this:</p>

<p>1. Waste lots of time and possibly money just trying to prove a point.</p>

<p>2. Earn money working for hire, not worrying about retaining copyright of images which are of no real value to you.</p>

[mark_mark9]

<p>Jess I appreciate any help ! But read the topic.... you'll notice that I said already this or that.... anyway... I found a lot of answers and good advice here.... John's posts are very helpful, They me good explanation of some parts of the case....</p>

[qalam]

Mark Mark, you probably were an independent contractor, although some of the reasons you advance are not really definitive proof of

that. The problem is that your work provider claims otherwise. Unless you sue her, it is highly unlikely that any solution is possible.

Furthermore, if she is putting info on her Website and attributing it to you, you may have a cause of action for fraud or impersonation.

 

In any case, you are the author of your misfortune by failing to have a clear and enforceable contract.

 

Nothing has changed in this regard since the time of the ancient Romans: verba volant, scripta manent (spoken words fly away, written

words remain).

 

Today, we say it more succinctly: GET IT IN WRITING.

[Spearhead]

<blockquote>

<p> if she is putting info on her Website and attributing it to you, you may have a cause of action for fraud or impersonation.</p>

</blockquote>

<p> <br>

Can you give a citation for this. Thanks.</p>

[qalam]

She cannot send emails using the photographer's name as the sender or put statements on her website that are claimed to be the words of the photographer.

 

18 USC 1001

"(a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial

branch of the Government of the United States, knowingly and willfully—

(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;

(2) makes any materially false, fictitious, or fraudulent statement or representation; or

(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or

entry;

shall be fined under this title, imprisoned not more than 5 years (...)."

 

There are also civil remedies for fraud by misrepresentation.

[mark_mark9]

<p>Do you guys know if there is anyway to save as a proof the website and make it useful in case of confrontation and charges ? I printed few copies of the page that is signed with my name, I did screenshots. What else I can do ?</p>

<p>I can't poof that she was sending emails, the only proof I have is a comment left on the page signed with my name and the comment said "thank you for your email it is exactly what we looking for I placed my order already signed with customer name" </p>

 

[john_h.1]

Wearing a logo different than a hiring party would be a factor along with all the factors determining the level of control.

A10-99 is a factor as well. It alone doesn't control for the reasons explained. It is evidence rather than proof per se.

Assisting vs. self direction is a factor. Using one's own equipment is a factor. Otoh, repetitious engagements are a factor the other way. There are also other details that are l missing but relevant. It would be of interest to get the other side's version of events to get a better picture of the situation. If this is to be fought, a full recognition of the situation is critical. Unintended hassles and consequence make it a tall order.

[Spearhead]

<blockquote>

<p>18 USC 1001</p>

</blockquote>

<p> <br>

I believe that this refers to statements to government entities, not to the general public. The first sentence specifies where the "offense" must take place, which doesn't apply to the situation at hand.</p>

[noreen]

<blockquote>

<p>Do you guys know if there is anyway to save as a proof the website and make it useful in case of confrontation and charges ? I printed few copies of the page that is signed with my name, I did screenshots. What else I can do ?</p>

 

</blockquote>

<p>Have you tried saving the particular page(s) as a PDF? </p>

[ben_singkol]

<p>Everyone knows that the legal world is full of gray areas, but my novice understanding is that the copyright belongs to the person who snapped the photograph. Sometimes it's as simple as that, and sometimes it's not. With that said, I wouldn't worry about her problems with using your own photographs to promote your business.</p>

[jeff_sudduth]

 

<blockquote>

<p>In my opinion there are two ways the OP can handle this:<br>

1. Waste lots of time and possibly money just trying to prove a point.<br>

2. <strong>Earn money working for hire, not worrying about retaining copyright of images which are of no real value to you.</strong></p>

</blockquote>

<p>Steve, I agree with you. I'm still trying to figure out what the point of this whole dust up is. Even if someone else owns the copyright on an image if you took the picture I really don't see you having problems using it in your portfolio. Also the images are worthless to Mark beyond a little advertising. Seriously this can't be worked out? My first reaction would be to point out people use images from model shoots they do for clients all the time in their advertisements. Surely something can be negotiated.</p>

 

<blockquote>

<p>She cannot send emails using the photographer's name as the sender or put statements on her website that are claimed to be the words of the photographer.</p>

</blockquote>

<p>This really is the most disturbing thing. I could negotiate on the copyright/using the images in my portfolio thing, but her impersonating him in business contracts is way over the line. If something goes wrong Mark's reputation takes a hit and he could be legally on the hook. I'm surprised more people aren't alarmed by this revelation.</p>

 

[mark_mark9]

<p>my name is kind of well known in the some type of photography and she is using this fact to gain business.... I wish to tell you all details but I just can't right now.... for me is she is using one or 100 my pictures doesn't matter I decided to not leave this case just like that and I will fight for every single picture and every single penny....</p>

[john_h.1]

<blockquote>

<p>Even if someone else owns the copyright on an image if you took the picture I really don't see you having problems using it in your portfolio.</p>

</blockquote>

<p>It would be copyright infringement and a potential cause of confusion on the part of the owner's potential clients if the owner were someone other than the shooter.</p>

<blockquote>

<p><br /><br />My first reaction would be to point out people use images from model shoots they do for clients all the time in their advertisements.</p>

</blockquote>

<p>That's usually because they own the images and can use them. As a result, the reaction has nothing to do with whether or not one can use images owned by others.</p>

<blockquote>

<p>I'm surprised more people aren't alarmed by this revelation.</p>

</blockquote>

<p>Just because more alarm is not expressed doesn't mean people don't find it disturbing. It would be stating the obvious. The thread is about copyright issues and, given the statements made, it generated further discussion. Much like the statements quoted here.</p>

[jeff_sudduth]

<blockquote>

<p>It would be copyright infringement and a potential cause of confusion on the part of the owner's potential clients if the owner were someone other than the shooter.</p>

</blockquote>

<p>What? The owner of the copyright is immaterial. If you took the photo you can advertise to clients and say this is what comes out of the camera when I push the shutter button. Where's the confusion?</p>

 

<blockquote>

<p>That's usually because they own the images and can use them. As a result, the reaction has nothing to do with whether or not one can use images owned by others.</p>

</blockquote>

<p>I've had a couple of girlfriends that were models. I've seen their portfolios. They did not own the copyright to the images in their portfolios. It's not a problem if both parties discuss the arrangement.</p>

 

<blockquote>

<p>Just because more alarm is not expressed doesn't mean people don't find it disturbing. It would be stating the obvious. The thread is about copyright issues and, given the statements made, it generated further discussion.</p>

</blockquote>

<p>Well Mark has multiple issues with this person that need to be sorted out simultaneously. To me the issue of my name being used in business transactions and the impression being given that I am sending and replying to business correspondences is unacceptable and illegal. The copyright stuff is soft and assuming not too much damage has been done can potentially be ironed out. The impersonation thing should NOT be worked out. It must stop immediately. Giving an ultimatum about the second issue may make the first issue moot so yeah, dude, it needs to be discussed, sorry.</p>

[steve m smith]

<blockquote>

<p>If you took the photo you can advertise to clients and say this is what comes out of the camera when I push the shutter button. Where's the confusion?</p>

</blockquote>

<p> <br>

Not if you don't own the copyright and don't have the permission of the copyright owner.</p>

[Spearhead]

<blockquote>

<p> It's not a problem if both parties discuss the arrangement.</p>

</blockquote>

<p> <br>

Until one party disputes any "discussion." Contracts work, discussions may or may not.<br>

</p>

<blockquote>

<p>the issue of my name being used in business transactions and the impression being given that I am sending and replying to business correspondences is unacceptable and illegal.</p>

</blockquote>

<p> <br>

Can you give a citation? The last person asked for this gave something not relevant to the situation at hand.<br>

</p>

<blockquote>

<p>The owner of the copyright is immaterial.</p>

</blockquote>

<p><br />Interesting if true. The implications are huge and quite contrary to what photographers expect.</p>

[jeff_sudduth]

<blockquote>

<p>Can you give a citation?</p>

</blockquote>

<p>Impersonating another individual and entering into business contracts as them is not legal. That's fraud man.</p>

 

<blockquote>

<p><br /> Not if you don't own the copyright and don't have the permission of the copyright owner.</p>

</blockquote>

<p>While this may be technically true my experience is reasonable people will give you permission. It's not like he is taking pictures of super secret business meetings between CEOs and heads of state.</p>

 

<blockquote>

<p>Until one party disputes any "discussion." Contracts work, discussions may or may not.</p>

 

</blockquote>

<p>By discuss I meant getting a formal arrangement either in writing or on audio/video tape or with a third party witness. As with all arrangements you have to be able to prove you have the arrangement.</p>

[Spearhead]

<blockquote>

<p>Impersonating another individual and entering into business contracts as them is not legal. That's fraud man.</p>

</blockquote>

<p> <br>

Where did she enter into contracts? Also, where's the citation.<br>

</p>

<blockquote>

<p>While this may be technically true my experience is reasonable people will give you permission.</p>

</blockquote>

<p><br />There's been plenty of posts here about verbal deals that went wrong later when the parties had a falling out. Being "given permission" doesn't work all the well in the face of legal issues.<br>

</p>

<blockquote>

<p>By discuss I meant getting a formal arrangement either in writing</p>

</blockquote>

<p> <br>

Then there's a language problem. "Discuss" does not mean "writing." Maybe English isn't your first language, if that's the case, sorry.</p>

[john_h.1]

Jeff Suddeth, my initial research suggests you are confusing industry custom and/or physical medium ownership with

copyrighted material on it with an exception.

[jeff_sudduth]

<blockquote>

<p>Then there's a language problem.</p>

</blockquote>

<p>Well if you realize that now and get my meaning then there is no problem. I should have been clearer initially.</p>

 

<blockquote>

<p>Where did she enter into contracts?</p>

</blockquote>

<p>Mark clearly stated the person was negotiating and closing sales on the internet while posing as him.</p>

 

<blockquote>

<p>One her website is a section with the special offer and at the end of the text she put my name, that this is my offer... I see comment left by one of the couple saying: OMG thank you Chris for you offer, my order has been placed, this excellent</p>

</blockquote>

<p>That is fraud. If one of those sales gets botched and a mad client sues in small claims court who do you think they are going to serve the paper to? Show of hands. Who in this forum thinks what this person is doing is perfectly legal?</p>

 

<blockquote>

<p>Jeff Suddeth, my initial research suggests you are confusing industry custom and/or physical medium ownership with copyrighted material on it with an exception.</p>

</blockquote>

<p>I look at industry norms to guide me in what is reasonable to ask for in a contract. If something is perfectly legal but way outside industry norms I would probably not ask for it in a contract negotiation unless there was some very specific special circumstance going on... even then.</p>

[steve m smith]

<blockquote>

<p>Until one party disputes any "discussion." Contracts work</p>

</blockquote>

<p>If neither party disputes any discussion, the contract is irrelevant.</p>

[john_h.1]

<blockquote>

<p>I look at industry norms to guide me in what is reasonable to ask for in a contract. If something is perfectly legal but way outside industry norms I would probably not ask for it in a contract negotiation unless there was some very specific special circumstance going on... even then.</p>

</blockquote>

<p>That's all well and good buttells us absolutely nothing as to whether a photographer posting images they shot, but owned by someone else, on their promotional website is infringement. </p>