Copyright Questions (Work for hire?)

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PDlightguy

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Greetings,

I am a Lighting Designer who had designed the lighting for events for an employer for the past eight and a half years. I'm also a photographer, a hobby that I've recently been building up towards a new professional career.

During my tenure with my former employer, I would take photographs of the events I designed for my portfolio. In kindness, I allowed the employer to use the photos for their own portfolio on their website and when delivering the disk of images I joked about charging and my employer kind of snapped back saying that I couldn't that they owned the copyrights because of "Work For Hire" under copyright law. This kind of took me back a bit because I didn't think that sounded right.

In my reading of the law on the government's website, I don't agree. It seems pretty clear that in order for the photographs copyright to fall under "Work For Hire" it must be:
*Part 1* A work prepared by an employee within the scope of my employment
-which it was not as I was hired as Lighting Designer.
*Part 2* A work specially ordered or commissioned for use....
- I took the photos on my own accord

Now I do fit under Part 1 as an employee but never has the scope of my work fit under photography. Also, my worries is that in their employee agreement they add that whole "and any other duties...".

Any thoughts to wither or not I am the actual copyright holder? They've used one of my photos for an ad and I never gave them permission.

Thank You,

Anthony
 
Anthony, I can't say for sure but will give you some insight as to my experience.

1) Why get into an argument with your employer/ex-employer over what probably amounts to nothing?

2) Technically you are taking photos of photos that the employer may own! Making this an easier example, if you were hired by Disney to create various photos of Mickey Mouse in Disneyland as a work for hire, don't you think Disney would be furious if you thought you owned your photos of the exhibit you put together for Disney on their dime which also included pictures of Mickey Mouse whose rights they would own? It's understandable why they might get mad with you.

3) Easiest is to have a contract drawn up that makes these portfolio uses clear.

With regard to the photo for the ad... what's your problem with it? It was their event. Anyone with a camera could shoot pictures of their own property. My guess is that if they had even thought there was an issue they would have told you not to shoot anything. What's the key here? A long term relationship that, if it were me, I wouldn't want to blow on account of an issue like this where your rights - even on a moral level - are somewhat in question. Hope that makes sense and just IMHO.
 
Hello and thank you for your reply.

Regarding your reply,
1) It is a question I continue to ask myself but seeing that my career is moving towards photography, the photographs amount to possible income. As a photographer, I charge not for the photo but for the rights to use the photo.


2) In your example, you are correct. Disney has hired me to take photographs. That is would be my sole function and it would fall under work for hire. The content of the photo is not the issue. They cannot nor can I copyright what is being photographed but the issue is who own the copyright OF the photo. Taking of photos was not ever part of my working arrangement and technically, the photos, in most instances, were taken during my breaks.

3) Had I known they were going to be jerks about it, I never would have taken the photos in the first place.

4) My problem with the photo with the ad is that use of that photo in that instance was worth about $2,500. I did not receive credit for the photo, the design or monetary compensation. There is no long term relationship with these people but that's another story.

I do appreciate your insight and opinion and I hope I don't come across that I'm taking anything personal. It's a sore subject for me and why I'm trying to find where I stand legally.

Thank You,

Anthony
 
You are missing a huge piece of the puzzle. If someone took a photo of your copyrighted photo of a picture of the sun setting over the Grand Canyon, does the fact that their photo was taken by their photographer change the fact that they have copied your photo? What if you painted a gorgeous portrait and someone took a picture? Do you think you have rights in controlling how your work of art is distributed, regardless of whether it was photographed or scanned? If you thought yes then you would be right. Think "derivative works."

Next time, be more careful. At this point, even if you had a case it would be messy.
 
Subject Matter aside, if I don't want them to continue to use the photograph, even if they say "fine, then you can't use it either..." I'm I correct that the photographs don't fall under "work for hire"?
 
Subject Matter aside, if I don't want them to continue to use the photograph, even if they say "fine, then you can't use it either..." I'm I correct that the photographs don't fall under "work for hire"?

"In kindness, I allowed the employer to use the photos for their own portfolio on their website..."

Good luck taking them to court. You've admitted to allowing them to use the photo and you're splitting hairs after the fact because you now think you could have made more money. They will argue it was more than just the website. Considering that it is pictures of their own work and exhibit, you'd have a very difficult time proving your case. At the same token, do you have a written agreement allowing you to use your pictures of work you've done for them in your portfolio and putting it on public display? If you want to pursue this case, it's your choice. As I said, do you think that they could have taken their own pictures if you told them they could only use it for the web site and nothing more? I can't say you won't win, I just don't think you will and have a mountain to climb to make your case IMHO.
 
::Sigh:: You're probably right and they aren't worth my time. Thank you for the logic. Better to let sleeping dogs lie...

Take care and thanks again.

-Anthony
 
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