You complicate the rights issue when you state the contact is with our company, not specifically with me. This acknowledges a written contract that could be interpreted as work for hire. As an employee of that "our" company, your photos again become work for hire.
Jerry, my professional work is not photography. It is business analysis related. When I sign a contract, most often the contract blatantly stipulates "work for hire" and that all copyrights belong to the hiring party. Then we have a polite discussion about why I won't give them my copyrights. So a contact by itself does not create "work for hire." Rather, work for hire must be explicitly clear in the contract.
See Point A. Works Created by Independent Contractors
I suspect if their contract fulfilled the "work for hire" requirements, digitaljjs wouldn't be looking at his options. Rather, he would have been read the riot act and it would be all over.
But you're right. You never can be too sure. Me, I don't like engaging others unless I feel that I need their services. At this point, if I were digitaljjs--and I ain't--I feel comfortable based upon what he's written that I own the copyrights. The fact that the opposing party wants the copyright speaks volumes.
Kevin, This law is subject to interpretation and that is what lawyers get paid for.
"A. Generally, the person who creates a work is the owner of the copyright. Thus, independent artists, photographers and writers own the copyrights to their works. The only exceptions to this rule occur when a work is created by an employee as part of his or her job duties or when a work is created under a written ěwork-for-hireî agreement.
For example, free-lance photographers own the copyrights to the images that they allow to newspapers or magazines to publish. However, absent an agreement that provides otherwise, a newspaper or magazine will own the copyright to all works that their staff journalists and photographers create as part of their job responsibilities. The same is true for art directors working in advertising agencies. The only way that the copyright could belong to the creator in these situations is if there is an assignment of the copyright. Of course, any stories, photographs or artwork created by employees on their own time, would belong to the authors of the works.
Sometimes it is difficult to differentiate between an independent contractor and an employee as that term is defined by the Copyright Act. Most employment situations imply a regular, salaried employment relationship between the parties. However, there is no precise standard for determining whether a person is an employee or an independent contractor under the Copyright Act. A person can be an independent contractor under state law while he or she is an employee under the Copyright Act.
The copyrights to works created under written agreements as works for hire belong to the employer. The law requires that there is a written agreement between the parties. Unfortunately, work for hire agreements can be very simple documents that masquerade as invoices or receipts. Most independent artists, photographers and writers will not operate on a work for hire basis. They feel that to do so, would deprive them of their right to fully exploit their creative talents. Also, they feel they will be treated as employees without having job security or getting any employee benefits."
This is an interpretation of copyright law as it applies to photography by Andrew D.Epstein a principal in the firm of Barker, Epstein & Loscocco, a full-service law firm located at 10 Winthrop Square, Boston.
Most independent artists, photographers and writers will not operate on a work for hire basis. They feel that to do so, would deprive them of their right to fully exploit their creative talents. Also, they feel they will be treated as employees without having job security or getting any employee benefits.
Agreed Jerry that, "This law is subject to interpretation and that is what lawyers get paid for." However, before one goes running to see a professional for every life concern, one can and should do some homework first. It's cheaper and more satisfying.
If I were digitaljjs, I'd look at all my documentation and receipts. There's nothing to indicate "work for hire." Good. Have a chat with my client and inform him that after a thorough review of all my documentation, I see nothing to support work for hire. And thus, I am confident that I retain full copyrights. Does he have anything to support an opposing viewpoint that I have not considered? No. Great, so now we agree. Next, we have other thorny issues to resolve.
My concern is that just because someone makes a quick phone call, sends a brief email, or snail mails a letter, that I need to go spend several thousands of dollars on professional assistance. That's nuts.
Find out through a bit of research what the key drivers are for determining key points of law, look through your documentation and see what you've got. If the facts are looking vague, then you might want to consider hiring professional help. If you are confident in your position, save your bucks, especially if you anticipate that a major customer might walk. And as part of this process, talk with you customer/adversary.
If the customer/adversary has strong conviction in his position, he'll tell you very clearly why. To him, it's a no brainer. Of course we own the copyrights. Did you not read your contracts where it says this and that and moreover it reiterates the same point here and here.
Conversely, if your customer/adversary waffles and tries to bs you, then you can take some comfort.
Absent a written work for hire agreement, digitaljjs owns the copyright. It can be simply resolved by digitaljjs saying to his customer/adversary, "Show me the written work for hire agreement that we supposedly agreed to."
That to me, is cheap, fast, efficient and extraordinarily effective. And it resolves all disputes regarding copyright immediately.
I am not a lawyer either, but this is what I have been told.
First if you work for someone as an employee, not a sub-contractor, and you use company gear to take a photo while on the clock, the copyright is owned by the company. If you are hired to shoot a photo shoot, like a product or model or wedding shoot, and you are using your camera gear, even if the lights are leased, you are paying for them, so they count as yours, then you own all the copyrights to all the images you took, unless stated differently in the contract.
Now some could argue that if you were a CPA and took pictures at a Company function, and got a once in a lifetime shot and went to publish it, some could say that since you took the image, you have the copyright, as it was not part of your "general scope of business duties". Also it would boil down to whom has an original files or the negatives if its film.
So as I understand it, as far as the images you have shot for him since you left his employment are owned by you, unless the contract states different. If you worked as a photographer and used thier camera gear when on staff and employed then those would most likely belong to them.
a side note, why does the equipment matter? what id your an indep Cont but they offer their equipment or equip you dont have perhaps with or with a discount of my services.
I am not a lawyer either, but this is what I have been told.
First if you work for someone as an employee, not a sub-contractor, and you use company gear to take a photo while on the clock, the copyright is owned by the company. If you are hired to shoot a photo shoot, like a product or model or wedding shoot, and you are using your camera gear, even if the lights are leased, you are paying for them, so they count as yours, then you own all the copyrights to all the images you took, unless stated differently in the contract. . .
. . .So as I understand it, as far as the images you have shot for him since you left his employment are owned by you, unless the contract states different. If you worked as a photographer and used thier camera gear when on staff and employed then those would most likely belong to them.
Hope this helps.
Kevin in Akl
That is the way I have read it each and every time I have combed over the copyright laws. Our agreement does not come close to meeting the requirements for a "work made for hire". I have sought out the information that I have online and in this forum because I didn't want to just run to a lawyer and start running up a bill with no education on what I am asking. I have searched through my agreements, emails, and anything else that I thought might be relevant. I have talked to the client to see what he was expecting. Either they did no research or they are playing dumb to see if I did my homework. I didn't say much except let them talk and state what they thought and what they would like to do. When asked why they don't own the copyright I stated all of the fine points that we have covered in this discussion on "work for hire". They said that they would like something in writing saying that they own the copyright which I did not agree to nor do I plan to agree to without a more "win-win" resolution.
White Balance so easy, even our 5 year old can do it.- Melissa Strickland
Good Luck. You could always offer to sell him the images, copyright and all. I dont know how many images you are looking at, but set a total purchase price for all of them, or a prices for the most popular ones, which off course cost a lot more each than then not used so much ones. Also make sure you keep an eye on the advertising they do over the next few months, like rack cards, Flyers, websites, print, etc...
Good Luck and hope you can work it out.
It really sucks when its a person you thought was a friend and now they are trying to take advantage of you!!
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