photographer's rights

[Ronnoco]

I have noticed some confused thinking here related to taking photos while on the job.

If you take photos, while working for an employer, you, as the photographer still own the copyright and the photos, unless you were specifically hired by Walmart or whatever company to take photos or signed a specific contract giving them the rights to your photos.

To use another example, a teacher while working for a school district, takes photos at a sports event. The teacher has not been hired to take photos and paid separately for completing that task, so he/she owns the photos and the copyright despite being on school district time when the photos were taken.

Even if you are hired as a photographer, you usually work on a contract that states that you retain the rights and ownership of any photos not used for the particular assignment.

Bottom line is that unless you are paid specifically for the photos or for your work in taking them, they are yours, despite whether you took them while working on another non-photographic job.

Ronnoco

[KatrinaB]

If you worked for a Studio, but never signed any contract releasing these images, who do the images belong to? Can I use them for my own advertising???

[Ronnoco]

If you work for a Studio and have been specifically hired to take photos etc. then the photos belong to the company or the business. On the other hand if you have been hired in some other capacity like manager, receptionist etc. then the photos you take probably belong to you, along with the rights unless you have signed something to the contrary.

Many pros use their own contract which specifies that photos that they have taken that are not used for the particular assignment belong to them personally, along with the copyright. That is how some pros. have acquired a very large bank and database of photos that they are in some cases advertising on the net as clip photography etc. It makes sense as a pro. to go after rights to anything that is not used by the business for the particular assignment.

Ronnoco

[JSPhoto]

If you work for a Studio and have been specifically hired to take photos etc. then the photos belong to the company or the business. On the other hand if you have been hired in some other capacity like manager, receptionist etc. then the photos you take probably belong to you, along with the rights unless you have signed something to the contrary.

Many pros use their own contract which specifies that photos that they have taken that are not used for the particular assignment belong to them personally, along with the copyright. That is how some pros. have acquired a very large bank and database of photos that they are in some cases advertising on the net as clip photography etc. It makes sense as a pro. to go after rights to anything that is not used by the business for the particular assignment.

Ronnoco

Ronnoco, again, get Canada and the US straight....hopefully SOME DAY you will learn the laws are different, and that includes work for hire.
Any job I do, I keep the rights to ALL photos.

JS

[Loupey]

I too retain all rights to all images I produce.

Ronnoco, as for your claim about retaining personal rights while on company time doesn't sound right. As an employer, I know that work produced while on paid company time (breaks and lunches may possibly be excluded here) are generally the sole property of the Company. Otherwise, one would be performing personal work for personal gain while on company time. That is grounds for termination in my book. Kinda like someone selling items on ebay when they should be working.

I've got a meeting with my attorney next week on other matters. I can bring it up with him to see if there are general guidelines here in the US. Until then, I advise no one to act on your advice. No offense, Ronnoco, but employment laws vary so much from state to state (let alone between the US and Canada) that one should be absolutely sure of these things. A job could be a big thing to lose to sell some $15 prints.

[Loupey]

Take it from the employer's point of view: A hired employee (no matter what his position), while on company time and premises, shoots images of the company's client or product. Now that person goes home and sells those same images personally for personal gain. Sounds like theft? What if the image showed proprietary product information of either the company or its customers? Companies generally have confidentiality clauses imposed by their customers (could be formal as a drafted document or seemingly insignificant as the small print on purchase orders). Many states have written recent laws specifically protecting corporations against theft of electronic data - digital images could be considered that. Unfortunately, I have had to work with attorneys on too many cases that push the boundaries of corporate policies and state law. It's a no-win situation unless you plan to make a LOT of money from the images AND you are very certain that your case is defensible.

Even if you are ultimately "right", are you ready to protect yourself by hiring an attorney? How much money and sleep are you willing to lose? If your employer is large enough or mad enough, they will come after you. I know that we are talking about innocent head shots and such, and I'm just speaking in general terms.

If you just have to have those images and your boss initially agrees, you better get it in writing.

Remember, if the state agrees with the employer that you were fired for "just cause", you are not entitled to unemployment compensation. And forget about getting a work referral for your next job.

I would NOT try it. Better to distance yourself as far as possible between your photo business and your "day job". I still will try to get a lawyers point of view this coming week in case you are wondering.

[greghalliday]

Yes, this is why the poor sucker engineer at 3M that invented sticky notes is not swimming around in hoardes of cash.

[Ronnoco]

I think that some of your points and scenarios are rather extremely stretched.

Keeping it simple, if I am on a conference to Japan, related to new products and I take tourist/travel photos during the day after the conference is over, or for that matter during an organized tour provided by the company, I certainly own those photos and can sell them or do whatever with them. If a newsworthy event takes place and I happen to have a camera, I also own the shots.

I did say and will repeat that it depends on the nature of what you were hired to do, but basic law is that the first owner of copyright is the person that created the work. If that person has not been paid for the work, then he/she retains ownership. American or Canadian, I am sure that this basic premise still applies.

As to personal work on employer time, that depends on a number of factors and is irrelevant to the basic issue of ownership and copyright of the photo. Not all employment situations are clock based, in any event. I have worked in some of those.

Ronnoco

[another view]

but basic law is that the first owner of copyright is the person that created the work.

I think most people will agree that this is the basic principal. The problem is the exceptions, such as a contract or possibly an employment situation. It's those exceptions that can be handled in different ways, and I'm sure (at least from what you're saying) that those exceptions are handled differently between Canada and the US. We have different laws here, as does Australia, UK and other home countries to other members here on this site.

I haven't seen anyone here claim to be a copyright lawyer, and that's exactly who advice should be solicited from. I'm afraid that "I know it's true, I read it on the internet" won't hold up too well in court, at least here...

[Ronnoco]

I think most people will agree that this is the basic principal. The problem is the exceptions, such as a contract or possibly an employment situation. It's those exceptions that can be handled in different ways, and I'm sure (at least from what you're saying) that those exceptions are handled differently between Canada and the US. We have different laws here, as does Australia, UK and other home countries to other members here on this site.

I haven't seen anyone here claim to be a copyright lawyer, and that's exactly who advice should be solicited from. I'm afraid that "I know it's true, I read it on the internet" won't hold up too well in court, at least here...

The exceptions are based on what amounts to legal common sense. If you work in an advertising agency, production company, television studio, newspaper, magazine, or in some other area involved in the creation of copyrightable work, then the employer may own the work. However, if you are a teacher, professor, truck driver, administrator, clerk, travelling consultant, salesman, etc. then unless you have been paid specifically for the work, or for your efforts to create it, then you still own the work and the copyright to it.

I have had extensive: one to one experience with copyright lawyers, have read the act, legal precedents and court cases and given workshops to television producers on the specifics of copyright law and their work. It also should be noted that I have seen top copyright lawyers take a completely different approach to presentations on copyright law when talking to users of materials and a vastly different one to administrators. I have sat on presentations as both user and administrator and the difference was enlightening. One stressed how almost everything was against copyright while the other indicated the limited realistic likelihood of copyright action against a organization.

Ronnoco

[Ronnoco]

I forgot to mention that copyright is covered by treaties, so that the laws are generally quite similar from country to country. One of the few differences for example between U.S. and Canada is the educational exception in American law. Definition of public display or presentation is also a somewhat fuzzy area with different interpretations.

Ronnoco

[ken1953]

Really, lawyers take what ever side fits them at the moment...hehe..But in the US, it's spelled out pretty simply about who owns a work. And Ronnoco makes a good point about being legal common sense and the treaties between most countries. Best thing for an individual to do is to read the copyright laws in the country you are living or working in and discuss it with a "reputable" lawyer (is that contradiction in terms???) hehe..Anyway, just be careful. If you are not an "employee" hired to specifically take pictures and there is no specific contract, written or verbal, in place, then the photographer owns all rights, as I understand it. (Information received from an Arts lawyer and in courses I've taken dealing with musical copyright).
Ken

[Loupey]

Sorry for getting back to this so late. I brought this topic up with my attorney and the general guideline is that the issue is basically gray - meaning it can get as ugly as either party wants and still be up to the judge to decide in either direction. What else did you expect in this age when one can even contest something as standard and common as non-compete clauses? When anything gets to that level, no one wins.

It comes down to your ethics and how much risk you like to take. If you want to test the system and prove your point, then plan on paying to send your attorney's family on some nice vacations

[Ronnoco]

Sorry for getting back to this so late. I brought this topic up with my attorney and the general guideline is that the issue is basically gray - meaning it can get as ugly as either party wants and still be up to the judge to decide in either direction. What else did you expect in this age when one can even contest something as standard and common as non-compete clauses? When anything gets to that level, no one wins.

It comes down to your ethics and how much risk you like to take. If you want to test the system and prove your point, then plan on paying to send your attorney's family on some nice vacations

The attorney who wrote the modern revisions to the copyright act in Canada made a few pertinent observations to administrators and producers of works. The cost for simply initiating an action for copyright infringement starts at $50,000 and no lawyer will accept a copyright suit on a contingency basis. In a law suit over who holds the copyright, the original producer of the work (photographer in this case) always has the advantage.

To give you an example of how few cases even get to any initial stage. A CEO of a small Canadian electronics business lifted photos of electronics items from a major national magazine and then used them in a large advertisement that went out in a very large Canadian paper. Did he get sued? Lose his business?

No, all he got was a cease and desist letter, after the advertisement had already run.

By the way...test system...pay lawyer??? You forget. It is the other guy who has come up with the big bucks: $50,000 + just to institute the copyright suit to begin with. Why would even a company for example risk the potential public relations nightmare and very large amounts of money over the issue of who owns the copyright of a few photos. That would certainly NOT come under the heading of sound business practice.

Ronnoco

[masdog]

...a "reputable" lawyer (is that contradiction in terms???)

About as much of a contradiction as "legal common sense."

[masdog]

Ronnoco, you have to remember that there are differences between the USA and Canada. Even if some aspects of copyrights are covered by treaties, there are still major differences between countries. In France, it is legal to use p2p software to download music and other copyrighted works, while the same action in the United States will draw a lawsuit. And while patents are also covered under international agreements, the European Union does not recognize software patents. So to say that just because it is one way in Canada means it is the same way in the United States is highly misleading, especially wihthout consulting an attorney.

I don't know how it works in Canada, but in the US, a lot of lawyers, especially in IP, don't work for free. If you get hauled into court on a copyright infringement case, you have to pay for your legal bills or settle out of court. I don't know what the filing fee is, but you don't need to pay $50,000 to initiate the suit.

And believe you me that there are companies that are willing to take people...i mean customers, to court over copyright issues. The RIAA and the MPAA are notorious for hauling people into court as suspected file traders and trying to extort money from them.

I was once prepared to take a group to court if they used my images in a manner which I did not permit them to. Since the amount of compensation would have been under $2000, I could have filed it in Small Claims Court for what I believe was a fee of $40 at the time.

[Ronnoco]

I don't know how it works in Canada, but in the US, a lot of lawyers, especially in IP, don't work for free. If you get hauled into court on a copyright infringement case, you have to pay for your legal bills or settle out of court. I don't know what the filing fee is, but you don't need to pay $50,000 to initiate the suit.
.

OK, I am confused as to what you are saying here. In order to get "hauled into court on a copyright infringement case" the "other guy" has to retain a lawyer to do a considerable amount of background investigation and paperwork before even filing the suit and that legal work costs him...as in $50,000 which is average in Canada or often more since the process leading up to trial can take 2 years or more.

To illustrate cost/benefit factors of a different suit that I was "on the border of" in terms of personal experience.... A gentleman at a meeting indicated that a letter that a woman wrote, who was present at the meeting could be considered libelous. The woman in turn sued the gentleman for defammation of character. A countersuit was possible but not instituted. After two years of "negotiation", the woman finally won in court on a technicality, but the award was $1,500. That would not have even come close to covering a small fraction of her legal fees to proceed with the initial suit and all the paperwork involved.

From the court cases that I have read, the few successful copyright lawsuits that have reached trial have usually involved either large firms against each other, large quantities of materials, large amounts of money or cases where fraud or other criminal activity is also involved. Rumours of teachers for example, successfully sued for copyright infringement in my area have been checked out and found to be false.

My answer as previously stated is check out the Copyright Act and get ahold of a book that contains a very precise legal interpretation from a lawyer whose credentials suggest an impartial view...obviously one that defends as well as prosecutes. Learn also to read the legal language carefully. There is a great deal of difference between "should" and "must" which is obvious, but there are other more subtle differences in legal language.

Ronnoco