Nightclub Photography who owns the photos?

[dale_bunn]

<p>I shoot for a Nightclub. I am a W9 independent photographer. They pay me a nominal fee to take photos for their marketing.. IE: Face Book & Web Site. I have no written contract with them. My question is, who owns the photos? All of my photos specifically list in the meta data that they are copyrighted with my Business name. A recent problem I just ran into is that my last shot their was someone famous that came to the club. I got a couple shots of this person and one of them was a $$$ shot so to speak. The club owners immediately sent the photo out to a bunch of popular media outlets for the big story. I was unaware of this and was approached (Called/Emailed) by 3-4 different large magazines asking me for a release/License grant for use for a reasonable fe that they were offering to pay because they saw that I was the photographer that took the shots. As I was on the phone with Us Weekly Magazine and one of their editors in the process of sending him over the files with my W9 and invoice for payment one of my photos (The one they specifically wanted to run) showed up on E's website and it was circulating in minutes on TV and every other celebrity news outlet on line.. So obviously this ruined my chance to sell the License as they didn't want it now. I contacted the club and asked them nicely to stop distributing the photo all over the place that they were causing me to lose out of a nice pay day. The owner of the club called me and was not very nice. Stating that I shoot at their club and that they OWN each and every photo case closed! If someone knows how the law works please advise me.</p>

<p>Thank you, Dale</p>

[john_h.1]

<p>http://www.copyright.gov/circs/circ09.pdf</p>

[dale_bunn]

Thank you John H! This link has informed me of something I did not know.

 

I guess my question now is that seeing how I/we did not have any written agreement as stated below from the article than I was not under a "Work for Hire" scenario?

 

if the parties expressly agree in a written instrument signed by them that the

work shall be considered a work made for hire.

[john_h.1]

<blockquote>

<p>seeing how I/we did not have any written agreement as stated below from the article than I was not under a "Work for Hire" scenario? if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.</p>

</blockquote>

<p>The next analysis then, as discussed in the circular, is if there is an agency/employment basis for there to be a work for hire. Namely, does the arrangement amount to employment based on sufficient control being exercised over a photographer by a hiring party. Merely labeling someone as an employee or independent contractor is not enough. Nor is the tax structure set up a determining factor alone. It is a balancing test of control. There's a whole bunch of different factors which are weighed to see if one is genuinely under control or not. If they are, the hiring party is an employer and owns the photos taken within the scope of employment. If not, the photographer is an independent contractor and owns the images they shoot. Most times, its the latter. <br /><br /><br /><br /> </p>

[ellis_vener_photography]

Do you want an authoritative answer? Ask Jack and Ed at http://www.thecopyrightzone.com

 

The non-authoritative answer: in the absence of a contract that says otherwise you do, and since those media outlets

used your photo without your permission (doesn't matter if they thought they were in the clear because your client sent it

out) you might be able to collect usage fees from them. But you should absolutely to register your photos and I advise

you to do immediately.

 

Likely outcome: you better hope you can collect because you'll shortly be without that nightclub as a client.

 

Ethics 1: you knew the photos are being used to promote the nightclub. Did you really think they would not send these out

far and wide?

 

Ethics 2: that celebrity was on private property owned by your client and you should respect their privacy and as a

representative of your client exploit their privacy for your gain is pretty nasty. Exemption to that rule: if the celebrity was

engaged in something that was newsworthy (like a fight, doing drugs, having sex who wasn't his or her spouse, exposing

themselves, etc.) then all are bets are off.

 

Call me square, but baby I just don't care.

[dale_bunn]

<p>Thank you Ellis for your reply.<br>

When I showed up to the club that night I had no idea of the celebrity showing up. The club marketing manager and one of the owners were all over me to get photos of her and the guy she was with. I am not paparazzi or anything and have really great ethics when respecting peoples privacy. I get permission from everyone in the club before I photograph them even though I don't need their permission. It's just how I roll. So i asked the celebrities security if I could get some shots.. They said no way.. lol.. So I hid back int he crowd and got some low lit grainy shots of her and this guy.. I don't watch much tv and certainly don't read or listen to any celebrity gossip.. I am just not interested in it. Apparently i got a money shot. I didn't know this until the next after I sent the photos to the marketing manager and my phone and email were blowing up with good $$$ offers to use the photos.. Before I could collect any fee's the club sent the photos out every where to every media outlet including TV. The honest ethical media outlets called me directly and said what the club was doing is wrong and that I need to stop them. So the club is the ones who couldn't wait to exploit their own guest that wanted to keep things private.. With my help obviously but I had no idea what I was getting a shot of. I was just interested in how the law works on who actually owns the photos I take. The club owner became very nasty with me quickly and specifically told me he owns all me photos.. I have no contract of any sort with this club. Nothing in an email or ever was told verbally that all the photos I take belong to them. I know the law is very tricky in these cases and I just want to educate myself for any future gigs. As far as the club gig goes I quit that gig as soon as the owner sent me the nasty email. I told him I was done offering any photographic services to his company. I don't like to associate with nasty unethical people.. I wasn't even credited for the photo on the sites they gave it to.</p>

[Spearhead]

<blockquote>

<p>Do you want an authoritative answer? Ask Jack and Ed at <a href="http://www.thecopyrightzone.com/" rel="nofollow" target="_blank">http://www.thecopyrightzone.com</a></p>

</blockquote>

<p>John H.'s answers are about as authoritative as they come.</p>

[john_h.1]

<blockquote>

<p>that celebrity was on private property owned by your client and you should respect their <a id="itxthook3" href="/business-photography-forum/00cfP6?unified_p=1" rel="nofollow">privacy<img id="itxthook3icon" src="http://images.intellitxt.com/ast/adTypes/icon1.png" alt="" /></a> and as a representative of your client exploit their privacy for your gain is pretty nasty. Exemption to that rule: if the celebrity was engaged in something that was newsworthy (like a fight, doing drugs, having sex who wasn't his or her spouse, exposing themselves, etc.) then all are bets are off.</p>

</blockquote>

<p>Privacy ethics matter unless there's something juicy to use?</p>

[ellis_vener_photography]

Those wet examples of newsworthy activities. Borderline newsworthy but newsworthy. If they are just minding their own

business, that's not newsworthy.

 

Jeff: While John's answers are the straightforward recitations, Ed Greenburg at http://www.thecopyrightzone.com makes

a very good living defending photographers' copyright. It's the difference between reading a camera's manual and

thinking you know how to make photos and the actual practice of photography. The copyright laws are written using the

English language but those words in a legal context definitely have meaning that they don't necessarily have in everyday

English.

[aaron l]

<p>Register your photos every 2 weeks with the copyright office PRIOR to you sending them in for use/publication. It'll cost you $55. You OWN the photos, as you were not working as an employee. If your nightclub owner wants to go to blows, he will lose. You will win. But you must register with the copyright office, otherwise you'll only get what you could have charged, no damages. The magazines calling you know this and assume you've already registered the images and they don't want to cough up $50k to pay you and your lawyer off.<br>

Oh, yes, your nightclub owner buddy does NOT own the images.</p>